The movement to legalize marijuana took a hit Jan. 4 when U.S. Attorney General Jeff Sessions announced the rollback of an Obama-era policy that discouraged the federal government from cracking down on the drug in states where it is legal. Under the new directive, federal prosecutors will call the shots when state drug laws collide with federal drug laws.
The 2013 Cole Memorandum advised federal prosecutors to stay out of marijuana prosecutions in states where it was legal.
“In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions,” Sessions wrote in a recent memo to federal prosecutors.
Reaction to the memo was swift and bipartisan, as Democrats and Republicans condemned the policy maneuver.
Sen. Cory Gardener, R-Colorado, threatened to block all nominees related to the Department of Justice over the move. Colorado was one of the first states to legalize marijuana in 2012.
“This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation,” Gardner wrote on Twitter. “With no prior notice to Congress, the Justice Department has trampled on the will of the voters in (Colorado) and other states.”
In New York, medical marijuana is legal but recreational use is not. In a November poll conducted by the Marijuana Policy Project of New York and the Drug Policy Alliance, 62 percent of voters were in favor of legalizing the substance for adults while 28 percent of voters oppose the move. A public hearing on the matter was set to be heard by several Assembly committees last week.
Charles Grieco, a member at Bond Schoeneck & King, said that under the Obama administration, federal prosecutors were instructed to only get involved in marijuana cases involving the sale of the drug to children, the use of guns or drug cartel activity.
“As a matter of prosecutorial priorities, the federal government really wasn’t going to interfere or prosecute the cultivation, distribution or possession of marijuana, not withstanding the fact that it is a Schedule 1 drug under federal law,” he said.
Under Schedule 1, distribution, cultivation and possession of the drug is a felony at the federal level, he said.
Sessions rescinded those directives, opening the door for prosecutors to be guided by existing federal guidelines. He has made it clear that he considers marijuana a dangerous drug and it should not be legalized, Grieco said.
“I think it remains to be seen how his memorandum is interpreted at the federal level,” Grieco said. “Whether that is going to be interpreted as telling federal prosecutors at the various U.S. Attorneys offices that they should be prosecuting these activities, not withstanding the fact that they are legal under state law. Nobody really knows at this point.”
The uncertainty, however, could reverberate around the legal recreational and medical marijuana industry, he said.
“I think it’s way too early to tell what the impact will be,” he said, “but that’s what everybody who’s involved with that industry in one way or another is waiting to see.”
The uncertainty alone could have an impact on a company’s ability to finance and conduct banking, according to Grieco.
The trend, statewide and nationally, seems to be in favor of legalized marijuana. In a Gallup poll in October, 64 percent of those polled said the drug should be legal, including 51 percent of Republicans polled.
“I think U.S. Attorneys and federal prosecutors are also going to have to take that into consideration when they prioritize in terms of prosecutions,” Grieco said. “It’s hard to imagine that some of these prosecutors, in states where the programs are operating and appear to be popular, that they’re going to want to suddenly disrupt that industry and have to focus on something that doesn’t seem to be a serious crime problem.”
He said he’s skeptical that U.S. Attorneys will go after legal marijuana use unless Sessions gives a clearer directive to federal prosecutors.
“I’m speculating, however, just like everybody else,” he said.
During the 2016 presidential election, then-candidate Donald Trump said he would leave the question of legalizing marijuana up to the states. But now his administration is singing a different tune. In February, then-White House Press Secretary Sean Spicer acknowledged that Trump supported medical marijuana, but he pointed out that the administration viewed recreational use of the drug differently.
Medical marijuana use is “very different than the recreational use, which is something the Department of Justice, I think, will be further looking into,” Spicer said at the time.
If prosecutions were to start happening, Grieco said it would be “extremely disruptive” to the legal marijuana industry. Even if the prosecution didn’t occur in New York, it could affect New York growers and distillers.
“It can make it obviously difficult for them to operate their businesses just because of the uncertainty,” he said. “Uncertainty is generally bad for any business; uncertainty in terms of whether or not your business is going to be shut down by the federal government for committing a felony is a pretty significant uncertainty a business has to think about.”
According to Grieco, legalizing marijuana would enable the government to regulate something that has been around since before the country was founded and isn’t likely to go away because it’s illegal.
“It never has,” he said.
Regulating the drug allows for tax revenue and the ability to control the quality of the substance, Grieco said. That way, the government can ensure that a safe product is sold.
“You can keep it out of the hands of illegal businesses and all of the things that go along with that like violence and crime,” he said. “I do think there is a politically conservative case to be made for legalization, as well. I think that’s why you see it crossing party lines quite a bit.”
The irony is that medical marijuana can provide relief for chronic pain, he said, as opposed to taking opiates.
“It can be an effective, and much less addictive and dangerous, pain medication,” Grieco said. “That’s what it’s used for primarily in New York state.”
Prosecuting marijuana at the federal level could be counterproductive to combatting the opioid epidemic, he added.
“People who are in pain are going to look for something to relieve that pain,” he said. “There’s certainly an argument to be made that access to regulated cannabis, like New York does it, is certainly much safer than a lot of the opioids.”