What You Need To Know About The Justice Department’s Clash With Legal Marijuana In Massachusetts

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Just a year after Massachusetts began the process of legalizing recreational marijuana, Attorney General Jeff Sessions has casted a cloud of uncertainty over how those in the state who use — and, later this year, sell — the drug will be treated by the federal government.

Could a crackdown be coming?

U.S. Attorney for Massachusetts Andrew Lelling, the state’s top prosecutor, who was appointed last year by President Donald Trump, is making no promises. And the recent series of moves by federal officials has the state’s fledgling pot industry scrambling for clarity.

What exactly did Sessions do?

Last week, Sessions’ office released a memo announcing that the Justice Department was rescinding a previous guidance by then-Deputy Attorney General James M. Cole under President Barack Obama.

The so-called Cole Memo — issued in 2013 as states began legalizing recreational marijuana — told federal law enforcement officials they could focus on priorities, such as preventing the distribution of the drug to minors or targeting violent trafficking, rather than cracking down on people who possessed small amounts and allowed states to police themselves.

But on Jan. 4 — despite record-high support for the legalization of recreational marijuana, which has been implemented in eight states and Washington, D.C. — Sessions noted that the cultivation, distribution, and possession of the drug remained illegal at the federal level and directed federal prosecutors to approach it as such.

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” the attorney general said.

While some officials, including U.S. attorneys in several states with legal marijuana, said they would not be changing their approach to enforcing marijuana laws in response to Sessions’ directive, the situation was less clear in Massachusetts.

In a press release Monday, the group behind the successful 2016 ballot initiative to legalize marijuana in the state called on Lelling to provide  “clear, unambiguous answers” regarding his office’s approach to the industry. For example, they asked whether federal prosecutors would pursue charges against the state-licensed marijuana businesses that are set to open this July or if his office would go after banks providing service to those legal pot shops.

What did Lelling say?

Creating perhaps even more worry and uncertainty, Lelling responded Monday that he couldn’t assure “certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”

“This is a straightforward rule of law issue,” he said in a statement. “Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana. As a law enforcement officer in the Executive Branch, it is my sworn responsibility to enforce that law, guided by the Principles of Federal Prosecution.”

That said, Lelling added that he would “proceed on a case-by-case basis” and noted that he’s working with “limited federal resources.” Explicitly stating that a certain group was safe from prosecution, he said, would mean he would be effectively changing federal laws passed by Congress.

“That I will not do,” Lelling said.

The statement Monday came after a previous statement last week following Sessions’ decision to rescind the Cole Memo, in which Lelling said marijuana “is in fact a dangerous drug” and pledged to “aggressively investigate and prosecute bulk cultivation and trafficking cases, and those who use the federal banking system illegally.”

Lelling said Monday it was up to Congress to provide the sort of certainty for which marijuana advocates were asking.

“The kind of categorical relief sought by those engaged in state-level marijuana legalization efforts can only come from the legislative process,” he said.

So, what happens next?

As Lelling noted, Congress could simply pass a law ending the federal prohibition on marijuana. Then, both federal prosecutors could follow the “rule of law” and those in the marijuana industry could live free from uncertainty or worry over the possibility of being arrested. However, with just one other co-sponsor for Sen. Cory Booker’s proposed bill to end the prohibition and Republican majorities controlling Congress, that seems unlikely in the immediate future.

In the short term, experts say that people considering getting into the legal marijuana industry are right to be concerned.

“I suspect they’ll bring one or two prosecutions to make the point the federal laws are still relevant and need to be complied with,” Brian Kelly, a former assistant U.S. attorney, told The Boston Globe.

However, most former prosecutors and lawyers appeared to agree that while a handful of operators in the industry may be targeted, Sessions and Lelling wouldn’t have any sweeping effects — not that that’s any comfort to the potential few who are prosecuted, especially considering the racially disparate history of marijuana policing.

“I think it’s mostly bluster,” New York University professor Mark A.R. Kleiman told the Globe.

“It’s a $40 billion market.” Kleiman said, referring to the growing industry. “We’re tired of mass incarceration. We have limited budgets. We have an opioid crisis. When you think about the nuts and bolts of actually enforcing the cannabis laws, it’s not feasible.”

Additionally, the Globe reported in a separate article that 10 of the 17 medical marijuana dispensaries in Massachusetts were forced to go cash-only Tuesday after a payment processing company pulled out of the market following Lelling’s statement, calling it “too risky to continue.”

What are Massachusetts lawmakers doing?

Elected officials on both sides on the aisle in Massachusetts have reacted forcefully.

According to State House News Service, Republican Gov. Charlie Baker says that Lelling should focus his “limited recourses” on combatting the region’s crippling opioid crisis rather than recreational pot users.

“What I would stress to him is the big public health crisis we’re dealing with in the commonwealth these days is opioid addiction and street drugs like fentanyl,” Baker said Tuesday at an event in Boston.

“I would like to see his limited resources focus on the elements that are killing many people every day here in the commonwealth, which is fentanyl and that’s going to be my message to him,” he said, later adding that voters’ decision to “create a legal, regulated, recreational marijuana market here in the commonwealth” should be recognized and understood.

Attorney General Maura Healey, who, like Baker, opposed the 2016 marijuana ballot initiative, also stood up for the new law Tuesday.

“Our office is committed to helping implement legalization effectively and as safely as possible” a spokeswoman for Healey told the Globe. We encourage the US attorney to further clarify his enforcement priorities to provide guidance to Massachusetts municipalities, residents, and businesses.”

And on the national front, Sen. Elizabeth Warren announced Tuesday that she was working on legislation to make sure states “have the right to enforce their own marijuana policies.” Warren added that the Justice Department’s “reckless actions have only created uncertainty for legitimate businesses.”

“States like Massachusetts have legalized marijuana because they want to protect people’s health and safety,” she said in a post Tuesday on Facebook. “Their efforts should be respected by the federal government – not dismissed outright by Attorney General Sessions.”

What about the state’s marijuana commission?

The entire furor erupted this week as the state’s Cannabis Control Commission continued their work to finalize the rules and regulations of the state’s recreational marijuana industry before shops can legally open in July.

The commission has had to make a number of decisions about the soon-to-open markets, from how to promote diversity and regulate advertising to whether to allow certain marijuana bars, movie theaters, and even yoga studios.

The five-member panel responded to the change in policy by Sessions last week in a statement asserting that they planned to continue implementing the law approved by the Massachusetts voters.

““We will continue to move forward with our process to establish and implement sensible regulations for this emerging industry in Massachusetts,” the commission said.

During a meeting Tuesday, commission chairman Steven Hoffman reiterated those intentions, according to State House News Service.

“We have a job to do and we’re going to continue to do the job,” Hoffman said. “That’s really the only reaction we have is that we have a job that was mandated by the voters of the state and we’re going to continue to do that job, and build and regulate this industry as best as we can.”

Hoffman also reportedly noted Tuesday that the commission’s general counsel is set to begin work next month. In October, according to State House News Service, the commission stressed that they ideally planned to hire a lawyer with federal experience, because as Commissioner Jennifer Flanigan said at the time, “we know at some point the federal issues are going to intersect with the state issues.”