On Jan. 4, U.S. Attorney General Jeff Sessions issued a memo rescinding Obama-era guidance on state-level marijuana legalization, effectively rekindling a dated war on America’s most commonly used illicit substance.
Coincidentally, Jan. 4 was also the day that the Vermont House gave final clearance to H.511, Vermont’s landmark marijuana legalization bill, which was signed into law later that month by Gov. Phil Scott.
Sessions’ memo was short and to the point, concluding by saying that “given the [Justice] Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and rescinded.”
Sessions was referring to a memo from then-President Barack Obama’s Deputy Attorney General James Cole, commonly known as the “Cole Memo,” that essentially said legal states would be left alone so long as they followed certain criteria relating to things like youth access, roadway safety and dangerous use of firearms in the cultivation process.
Despite making national headlines due to the nature of its legalization, Vermont will most likely still be able to “fly under the radar” of federal authorities since the Legislature did not establish or allow for a regulated commercial market.
States like Colorado, Oregon and California were subjected to raids on dispensaries and cultivation sites that were legal by state standards. Although the number of raids went down following the “Cole Memo,” there were several high-profile raids in 2017 under the Trump administration.
Many of the raids were done on the basis of a “grey market,” meaning marijuana is cultivated and distributed under the guise of state compliance, but in actuality is being trafficked to states where the substance is illegal or sold in legal states but in illegal quantities.
While the “Cole Memo” deprioritized marijuana prosecution from a federal standpoint, the substance retained its Schedule I classification. Schedule I is the highest classification under the Controlled Substances Act and means that a substance has no medical use and a high potential for abuse.
“What’s important to recognize is that the reason [cannabis]is a Schedule I drug is not because of scientists and the FDA,” Lt. Gov. David Zuckerman said. “It was actually a congressional act in the 1930s because of the political atmosphere at the time . . . It was not left to science. It was a political decision.”
The criminalization of marijuana in the United States is a history rooted largely in racism and misinformation. The man primarily responsible was Harry Aslinger, the first commissioner of the Federal Bureau of Narcotics, an agency that would go on to become the Drug Enforcement Agency.
Aslinger’s book, “The Murderers: The Story of the Narcotics Gangs,” details his methodic campaign against marijuana, during which he wrote newspaper and magazine articles, appeared on radio shows, dispatched his agents to give “hundreds of lectures” to parents and educators and repeatedly testified before Congress, ultimately resulting in the passage of the Marijuana Tax Act of 1937.
“A gang of boys tear the clothes from two school girls and rape the screaming girls, one boy after the other,” Aslinger says in the book, listing several gruesome, supposedly marijuana-related crimes. “As the marijuana situation grew worse, I knew action had to be taken to get the proper legislation passed.”
The Marijuana Tax Act of 1937 was the first congressional act to establish penalties for the cultivation, distribution and use of marijuana. The Act didn’t explicitly ban marijuana, but instead established an expansive tax system and documentation requirements. These were not only nearly impossible to navigate, but the penalty for noncompliance was even stiffer fines and heavy jail sentences.
Aslinger — who claimed that Mexicans and African Americans were the primary users of marijuana — said that marijuana use promoted interracial socialization and relationships.
Even the verbiage was changed during Aslinger’s campaign. The plant had more commonly been referred to as cannabis, but slowly became known as marijuana to mimic its Mexican name.
The Marijuana Tax Act was eventually ruled unconstitutional by a federal court in the 1969 case of Leary v. United States, on the grounds that it required self-incrimination. It was quickly replaced by the Controlled Substances Act and many of the assertions in Aslinger’s campaign continue to guide marijuana discourse today.
Sessions has long opposed marijuana reform, famously saying that “good people don’t smoke marijuana.” Although he was one of Trump’s earliest supporters on the campaign trail, his stance on marijuana starkly contradicted Trump’s.
“I think medical should happen — right,” Trump said during a 2015 campaign rally in Nevada. “. . . I really believe we should leave it up to the states.”
Since being elected, Trump has mostly stayed quiet on marijuana reform, letting Sessions take the reins.
That is, until recently.
Earlier this month, Trump promised not to go after suppliers and users so long as they comply with their state’s laws. The president spoke with Colorado Republican Senator Cory Gardner about his state’s marijuana laws.
“Late Wednesday, I received a commitment from the president that the Department of Justice’s rescission of the ‘Cole Memo’ will not impact Colorado’s legal marijuana industry,” Gardner said. “Furthermore, President Trump has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all.”
With Trump’s background in business, it’s no surprise that he would support a taxed and regulated marijuana industry — an industry that’s grossed almost five billion dollars in sales since 2014 in Colorado alone.
A main goal of legalization efforts has been to stifle cash flow from illegal marijuana sales to criminal organizations. Even under the Cole memo, his second bullet point mentioned “preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels.”
H.511 also aims to “substantially reduce the illegal marijuana market,” instead using revenues to fund substance use and prevention education.
Conversely, Sessions opens his rescission memo by stating that the cultivation, distribution and possession of marijuana may serve as a basis for the prosecution of other crimes, such as those pertaining to money laundering and unlicensed money.
While the idea of regulating and taxing a marijuana market appeals to some, civil asset forfeiture has done just as well to serve the funding needs of the DEA.
Civil asset forfeiture is the ability of law enforcement to permanently seize cash, cars, real estate or any other valuable property without charging the owner of a crime. The seized assets are used to fund the DEA’s Domestic Cannabis Eradication/Suppression Program.
The practice is hugely unpopular and has drawn opposition from both sides of the aisle on Capitol Hill, with lawmakers arguing the practice is unconstitutional. In the last five years, the program has seized more than $165 million in property, been responsible for 30,000 arrests and eradicated 21.6 million marijuana plants.
One example is the case of James Slatic, a California entrepreneur who ran a legal business refining marijuana extracts and providing them to medical dispensaries. His facility was inspected by the city, employees treated well with employer-matched 401(k) accounts and health insurance, and his products tested by a city-sanctioned laboratory.
One day, Slatic’s facility was raided by a team of armed law enforcement agents who seized $325,000 in cash, as well as all of his product bound for licensed medical dispensaries. His entire family’s accounts were frozen, assuming that they’d all been tainted by his “illegal” business, even though his high school and college-aged daughters worked at Starbucks and a toy store, respectively.
After one year, no one in the family had been arrested or charged, but the accounts remained frozen and all assets subject to civil forfeiture proceedings.
Vermont has yet to experience anything of this nature and its medical marijuana industry pales in comparison to that of California’s, which has been well established for two decades.
Until July, Vermont citizens, lawmakers and other elected officials won’t know exactly what to expect, but the state is still behind its neighbors Maine and Massachusetts, who will have regulated marketplaces opening at the same time that H.511 goes into affect.
To this point, Gov. Scott has expressed little concern over Sessions’ stance and policy on legalization. Vermont Attorney General T.J. Donovan said that even though he’s long suspected that marijuana reform is inevitable, he’s been “ambivalent” about the process and says that Vermont needs to pay attention to changes in federal policy.
“Let’s get an understanding of what their policy is, what their strategy will be and how that will impact the state,” Donovan said. “Let’s make informed decisions based on that.”
While Vermont won’t necessarily have to worry about DEA raids quite yet, Donovan still recommends the state go slow in setting up a regulated marketplace.