California Defiant In Face Of Federal Move To Get Tough On Marijuana

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Photo Credit: Jim Wilson

The sale of recreational cannabis became legal in California on New Year’s Day. Just four days later, the Trump administration acted in effect to undermine that state law by allowing federal prosecutors to be more aggressive in prosecuting marijuana cases.

A memo by Attorney General Jeff Sessions on Thursday was widely interpreted in the nation’s most populous state as the latest example of Trump vs. California, a multifront battle of issues ranging from immigration to taxes to the environment.

And on marijuana, once again California reacted with defiance.

“There is no question California will ultimately prevail,” Gavin Newsom, the lieutenant governor of California, said. “The public has accepted legalization’s inevitability. It will be very difficult for Sessions to bring us back to a mind-set that existed five years or a decade ago.”

The head of California’s Bureau of Cannabis Control, Lori Ajax, said legalization would proceed as planned, “consistent with the will of California’s voters.”

Although medical marijuana is legal in some form in 29 states and recreational marijuana is sold in six states, it remains banned by the federal government and is classified in the same category as heroin.

It is too early to tell how federal prosecutors around the country will interpret the Sessions memo, which rescinded guidance by the Obama administration that had discouraged the bringing of charges involving marijuana-related crimes in states that have legalized the drug.

The memo reminded prosecutors that “marijuana activity is a serious crime.” Mr. Sessions said in a statement that “stricter enforcement by prosecutors will help tackle the growing drug crisis, and thwart violent crime across our country.”

Leading voices in California’s marijuana industry said Thursday that while the announcement by Mr. Sessions might have punctured some of the excitement surrounding legalization, it did not change their plans to take part in what is the world’s largest legal market for recreational pot.

“This has changed zero on the ground for us,” said Steve DeAngelo, the executive director of Harborside, a company with dispensaries in Oakland and San Jose.

“I don’t think this is going to result in any serious attempt to shut down the legal cannabis industry,” Mr. DeAngelo said. “It’s more of a delaying tactic than a knife to the throat of the industry.”

Californians approved Proposition 64, which allowed for recreational use of the drug, by a 57 percent to 43 percent margin in a November 2016 ballot initiative.

Carla Lowe, the Northern California director for the advocacy group Citizens Against Legalizing Marijuana, said she hoped the Sessions memo would focus attention on a drug that was being produced at much higher levels of potency than in previous decades.

“I’m concerned what this is doing to developing brains in young people,” she said.

“I would hope this would get the attention of some of the people who are law-abiding citizens,” Ms. Lowe said. “But I don’t know that there’s much hope in California.”

Lawyers who specialize in cannabis said they were skeptical that federal prosecutors would be more aggressive in California for several reasons, including a perceived reluctance of jurors in the state to convict marijuana cases, especially small-scale ones, that do not involve other crimes. Lawyers also point out that the Trump administration has not yet appointed its own federal prosecutors in California.

Additionally, lawyers said the Justice Department is constrained by the Rohrabacher-Farr amendment, which has been attached to congressional budget bills in recent years, and prohibits the Justice Department from spending money on the implementation of state medical cannabis laws.

“The message to the industry is that nothing has really changed,” said Sean McAllister, a lawyer who specializes in cannabis cases in California and Colorado. “The industry has flourished in an environment of uncertainty for the past 20 years. Sessions’s memo does not create any additional uncertainty that did not already exist.”

But the uncertainty is nonetheless substantial. The Sessions announcement may give further pause to large companies that have been reluctant to invest in the marijuana business because of fear of retaliation by federal authorities. And small-scale veterans of the industry — the cottage marijuana businesses in the famed Emerald Triangle of Northern California, among others — face potential threats of forfeiture, as they always have. If prosecutors were to crack down, sellers and anyone caught in possession of the drug could go to jail.

Yet as a practical matter, officials from the federal Drug Enforcement Administration have said that combating opioid trafficking is much more important than cracking down on marijuana given the agency’s stretched resources.

Russ Baer, a spokesman for the Drug Enforcement Administration, said in an interview last year that most of the agency’s resources were being spent on combating opioids. “We are spread thin,” he said.

Local law enforcement is also stretched. Thomas D. Allman, the sheriff of Mendocino County, one of the three counties in the Emerald Triangle, said Thursday that investigating marijuana cultivation was not a high priority, unless it was “out of control” or involved other crimes, such as the environmental damage.

“If somebody is obeying state law, I’m going to say there are not many local law enforcement agencies who are going to be rushing out to do an investigation,” Sheriff Allman said. “There are many other crimes we can focus on that impact the safety of the community.”

Hezekiah Allen, the executive director of the California Growers Association, a cannabis industry group, says while marijuana growers are concerned about the more aggressive federal posture, longtime growers have seen it before.

“Folks that have been at this for a few generations remember that this is a cycle,” Mr. Allen said. “Federal enforcement ebbs and flows and it has for decades. This is another enforcement cycle but this time we have a state government that is working with us. And frankly enforcement wasn’t all that effective in the past.”

On Thursday, among customers at the Berkeley Patients Group, a dispensary that sells recreational marijuana, there was defiance and eye-rolling among those asked about the Sessions memo.

“To me, they’ve always wanted to destroy everything Obama did. It’s all in that vein,” said Barry Alexander, 61, a supervisor at a Whole Foods supermarket. Mr. Alexander was skeptical that the Trump administration could do much to change legalization in California. “We’re like Texas, we’re our own country,” he said.

Ian Carr, 23, a construction worker who bought cannabis at another dispensary in Berkeley, the Cannabis Buyers Club, shrugged off the prospect of a federal crackdown.

“I’ve been using marijuana since before it was legal,” he said. “So I’d just go back to that.”