NY: Federal Prosecutor Unlikely To Pursue Low-Level Marijuana Crimes Despite Sessions Memo

Photo Credit: Robert Kirkham

When Attorney General Jeff Sessions did away with the Obama-era, hands-off approach to recreational marijuana, he left the door open to a new federal crackdown on the drug.

He also left the discretion for any stepped-up enforcement in the laps of his local prosecutors.

In Western New York, where the recreational use of marijuana is still illegal, Sessions’ high-profile actions raised the question: Will there be changes in the type of marijuana cases prosecuted here?

Three weeks later, there are no dramatic signs of a crackdown on pot and, to the contrary, there’s an expectation that little will change.

Criminal defense lawyers say the biggest reason is U.S. Attorney James P. Kennedy Jr., a career prosecutor who, like his predecessor, has a long history of pursuing only the most serious marijuana cases.

“There’s a lot of legal and political uncertainty,” said Buffalo defense attorney Cheryl Meyers-Buth. “But I don’t expect much to change in terms of the number or type of marijuana prosecutions in our district.”

The speculation over possible changes in Kennedy’s handling of marijuana cases began earlier this month when Sessions rescinded the Cole memo, the Obama-era policy allowing federal prosecutors in states where the drug is legal to focus resources elsewhere even though marijuana was still illegal under federal law.

Sessions’ announcement also came as medical marijuana advocates fought to preserve another protection – a congressional amendment barring federal prosecutors from interfering in state-run medical marijuana programs such as the one in New York State. The amendment expires Feb. 8.

Kennedy, who was appointed by Sessions, not President Trump, said the attorney general’s action restores “the rule of law” and clarifies his office’s role in enforcing the laws Congress adopted.

“With his memo, the Attorney General is giving U.S. Attorneys local control to utilize familiar and long-established prosecutorial principles to determine how best to fulfill our ongoing obligation to deploy our finite resources to reduce violent crime in our community, stem the tide of the drug crisis and dismantle criminal gangs,” he said in a written statement to The Buffalo News.

In short, Kennedy added, “he is quite simply telling us to do our jobs.”

Kennedy’s statement is likely to be viewed as a message that his office will continue to focus on what his predecessor, William J. Hochul Jr., called the “worst of the worst.”

“The types of marijuana cases that have historically been prosecuted in Buffalo and Rochester have been high-volume, grow operation or interstate transport cases, or have some connection to violence,” said Timothy W. Hoover, a Buffalo attorney and vice president of the New York State Association of Criminal Defense Lawyers.

Hoover doesn’t expect that to change, and neither does Herbert L. Greenman, a prominent Buffalo defense lawyer.

Greenman, who is currently representing a client in a high-quantity marijuana case, thinks Sessions’ actions are directed at states where pot is legal, not at states like New York where recreational use is still against the law.

And like Hoover, he doesn’t think Kennedy will change the type of marijuana cases he prosecutes.

“To me, it doesn’t make a lot of sense,” Greenman said of Sessions’ decision to do away with the government’s hands-off approach in states where the drug is legal. “This is definitely a step in the opposite direction.”

Greenman believes government should “temper” its marijuana prosecutions, especially when they involve nonviolent offenders. But he also has serious doubts about legalization, particularly its health effects, and thinks the states that have legalized it have yet to even study those issues.

And yet, he also sees firsthand the prosecution of marijuana cases in Buffalo federal court and the penalties for possession of larger quantities, which are still severe.

“People are still going to jail,” Greenman said.

In 2013, during a speech to the American Bar Association, another attorney general, Eric Holder, offered a far different type of directive to his prosecutors.

Holder, eager to reduce the federal prison population and the disparities in how white and black defendants are treated by the criminal justice system, told his U.S. attorneys to focus less on low-level drug cases and more on violent, gang-related drug crimes.

At the time, Hochul said his office already had a long track record doing what Holder suggested – focusing on drug cases that involve violence, gangs or large-scale criminal organizations.

On the surface, Sessions’ repeal of the Cole memo would seem to suggest that a new, tougher approach to marijuana is on the horizon. But defense lawyers are skeptical, and one off the reasons is because of the local U.S. Attorney’s limited financial resources and ever-expanding agenda of new prosecutorial priorities.

‘They just don’t have the resources to make a difference,” said Buffalo defense attorney Paul G. Dell.

Dell recently represented a Buffalo woman who was caught up in a large-scale marijuana operation and is the type of nonviolent offender defense lawyers point to when asking for leniency.

His client, who was in custody because of her drug addiction, pleaded guilty to a misdemeanor and was sentenced to time served. U.S. District Judge Lawrence J. Vilardo also ordered her into a drug treatment program.

Later, when asked about Sessions’ repeal of the Cole memo, Dell said, “I think it’s ridiculous and backwards, and runs contrary to all the science and research we know of.”

Not everyone is worried about the fallout from Sessions’ actions, and there is a growing pool of people who think the backlash, both from the public and Congress, could be strong enough to help the legalization movement.

“I don’t think anyone who uses marijuana is going to be concerned about his actions,” Joel A. Giambra, the former Erie County executive and current candidate for governor, said of Sessions.

Giambra, who was once a lobbyist for the marijuana industry and has made legalizing pot a focal point of his campaign, thinks the attorney general, a longtime opponent of marijuana, has “outlived his usefulness” and in the end may help the legalization cause.

“I think the movement is so strong, we’re at a point where Congress will realize this is an industry that needs to be cultivated, if you’ll excuse the pun,” he said.

Even Gov. Andrew M. Cuomo, a longtime opponent of legalization, is softening his stance against the recreational use of marijuana.

Cuomo included money to study the economic and social impact of legalization in his 2018 budget.