Attorney General Jeff Sessions last month directed individual U.S. attorneys to follow “the well-established principles that govern all federal prosecutions” when deciding whether to prosecute marijuana-related crimes, effectively removing policy statements that discouraged the prosecution of marijuana businesses that were operating consistent with state law and not interfering with federal law enforcement priorities. Under the new guidance, prosecutors are directed to treat federal marijuana crimes like any other crimes, and make charging and resource-allocation decisions based on considerations such as “federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
Sessions’s memorandum explicitly rescinds five policy statements written between 2009 and 2014—the most significant of which were two memoranda from James M. Cole, deputy attorney general in the Obama administration. The first, from Aug. 29, 2013, deprioritized the prosecution of marijuana-related businesses that did not interfere with specific federal narcotics enforcement priorities. That memorandum stated that, outside of the enumerated priorities, the DOJ has traditionally left enforcement of marijuana-related crimes to state and local authorities and that states that have legalized marijuana in some form “must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.” Cole’s Feb. 14, 2014 memorandum provided similar guidance to U.S. Attorneys with respect to certain financial crimes, such as money laundering and violations of the unlicensed money remitter statute or Bank Secrecy Act, for which marijuana-related conduct can form the basis for prosecution. While the Controlled Substances Act, which makes it illegal to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana, remained the law of the land, these Obama-era directives gave marijuana-related industries some comfort where the substance had been sanctioned by state law.
The DOJ’s policy shift makes clear that marijuana businesses remain in jeopardy of federal prosecution. Reactions to the announcement from U.S. attorneys suggests there will be a lack of consistent application of federal law across the country. Andrew Lelling, the U.S. attorney for the District of Massachusetts, struck an aggressive tone following Sessions’s announcement, stating in a Jan. 8 press release that he “cannot . . . provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”
“This is a straightforward rule of law issue. Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana,” the statement continued. On the contrary, U.S. Attorney Bob Troyer of the District of Colorado announced that the Sessions Memo would not precipitate a change in policy in his office, stating in a Jan. 4 press release that the principles outlined in the Sessions Memo “have long governed all of our prosecution decisions.” Troyer stated that his office will continue “focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.”
Colorado, like Massachusetts, has legalized both medical and recreational marijuana on the state level. David Freed, U.S. attorney for the Middle District of Pennsylvania, has also implied that he does not intend to crack down on medical marijuana businesses that comply with state law, saying in a Jan. 4 press release, “While I cannot state that there will never be an issue in this area meriting federal involvement, my office has no intention of disrupting Pennsylvania’s medical marijuana program or related financial transactions.”
Unlike Massachusetts and Colorado, Pennsylvania has legalized marijuana only for medical use. Other U.S. attorney’s offices, including those in the Southern District of Colorado, the Districts of Oregon and Maine, and the Southern District of California, have released statements saying that while marijuana remains illegal under federal law those offices will prioritize the prosecution of violent crime and threats to public safety. While it is impossible to predict how or if specific federal prosecutors will ultimately prosecute crimes related to state-legal marijuana businesses, it is important to keep in mind that policy can change at any time. U.S. attorneys around the country have signaled that they may take different approaches to the Sessions’s guidelines. Marijuana businesses, and those that aid and abet them, remain at the mercy of individual prosecutors.
While U.S. attorneys work to implement the new guidance, the Attorney General’s announcement has elicited sharp criticism from Members of Congress on both sides of the aisle, with the most vocal opposition coming from Sen. Cory Gardner, a Republican from Colorado, who has threatened to block all nominees to the DOJ. Given the swift outcry from Congress, Sessions’s moves may, paradoxically, serve as the catalyst for more responsible reform by lawmakers. Until then, however, marijuana businesses are flying without a net.