After about a year of wondering “will he or won’t he?” it appears he will.
On the morning of Jan. 4, the Associated Press broke the news that a reversal was likely, and later that day, it happened: U.S. Attorney General Jeff Sessions rescinded an important Obama-era drug enforcement policy known as the Cole Memo.
Named for then-Deputy Attorney General James Cole, the Cole Memo was issued in 2013, after voters in Colorado and Washington approved measures legalizing marijuana for recreational use. It was meant to address the conflict with federal law, which still holds that marijuana is a Schedule I substance (meaning, highly addictive with no medical benefit).
The memo set out guidance for federal prosecution of marijuana-related crimes. “The [Department of Justice is] committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent and rational way,” it stated. Therefore, the DOJ would expect state and local authorities to police health and safety issues through a robust regulatory system while it would reserve its own resources for priority cases like sale to minors, interstate diversion and gang activity.
The Cole Memo created an environment that let state regulators, cannabis businesses and consumers feel comfortable partaking of the state-legalized substance, knowing that if they followed the rules, they had nothing to worry about. It encouraged investment and growth. Colorado’s recreational marijuana industry brings in over a billion dollars in annual sales, supporting tens of thousands of jobs and providing millions in tax revenue for schools, law enforcement and addiction treatment. So, though nothing drastic is likely to happen imminently, the environment is less certain than it was in this first period of legalization.
In his memo, sent to all U.S. Attorneys, Sessions called the Cole Memo “unnecessary,” guiding them instead to “follow the well-established principles that govern all federal prosecutions” that include “the seriousness of the crime, the deterrent effect of criminal prosecution and the cumulative impact of particular crimes on the community.” And, just in case that’s ambiguous, elsewhere in the memo, Sessions writes that under federal law, “marijuana activity is a serious crime.”
The U.S. Attorney in the District of Colorado is Bob Troyer, who came to that office in 2010 first as assistant attorney and became acting U.S. Attorney in 2016 when John Walsh left the post. Sessions appointed him to the post in November. There’s still technically an “interim” in front of his title.
Troyer released a statement about Sessions’ new guidance, saying, “The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state. We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”
Cynthia Coffman, Colorado Attorney General, held a press conference that afternoon saying she’d had a conversation with Troyer that assured her the black and gray markets would remain his priority for enforcement, not licensed operators acting in compliance with state statute, rules and regulations. “I would encourage people not to freak out,” she reportedly told the room.
Meanwhile, Colorado’s Republican U.S. Senator Cory Gardner spoke out strongly against Sessions’ move. In a statement released shortly after the initial news broke, he said: “Before I voted to confirm Attorney General Sessions, he assured me that marijuana would not be a priority for this Administration. Today’s action directly contradicts what I was told, and I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation. In 2016, President Trump said marijuana legalization should be left up to the states and I agree.”
Democratic U.S. Senator Michael Bennet and U.S. Representative Jared Polis, who’s running to be Colorado’s next governor, condemned the move too.
Some gave praise, like Colorado Springs Mayor John Suthers and El Paso County Sheriff Bill Elder. Suthers, who previously served as U.S. Attorney in Colorado, told the Gazette he’s “not surprised” that Sessions would make a change, considering, in Suthers’ opinion, Colorado’s failure to curb the black market and youth use.
The local group working to put a retail marijuana question on the November ballot, Citizens for Safer Neighborhoods, had a different take. “This decision disrespects the will of the people and is counter to our efforts to eliminate the black market and the drug cartels that have plagued our Nation,” said Mike Elliott, the group’s spokesperson. He also pointed out that Sessions’ position is in the minority, citing survey findings that a sizable majority of Americans support both medical marijuana and full legalization of marijuana for adults 21 and over.