U.S. Attorney General Jeff Sessions has been making every attempt to enforce federal marijuana policy on the entire nation, even in states where it is legal. Since May, he has been asking Congress to allow the Justice Department to override the Rohrabacher-Farr amendment, which specifically protects legal states from federal laws. Now, it is even more unlikely that Sessions will get his way.
Despite his opposing views of cannabis legalization, a Justice Department subcommittee appears to ignore his pleas in its recommendations. Tasked with studying the issue specifically, the Department of Justice Task Force on Crime Reduction and Public Safety “has come up with no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views.”
This, despite federal funding specifically to link marijuana to rising violent crime rates, may just be the final blow to Sessions’ campaign. According to the Associated Press, which has copies of the as-yet-unpublished recommendations, the subcommittee diplomatically says that officials “should evaluate whether to maintain, revise, or rescind” the Cole Memorandum.
In 2013, Deputy Attorney General James Cole established a policy that restrains the federal government from prosecuting state-licensed cannabis businesses. However, the subcommittee’s recent report does not make any recommendations about the Cole Memorandum, and thus far, Sessions appears to be using it as an enforcement guide by scrutinizing it for any possible loopholes.
Sessions considers the memo “truly valuable in evaluating cases.” It does provide the federal government some leeway for more vigorous enforcement of its cannabis ban, such as its eight “enforcement priorities” that justify federal prosecution of state-licensed weed businesses, some of which are either vague enough to become pretexts for federal crackdown or impossible to achieve.
Recently, Sessions sent a letter to Washington Attorney General Bob Ferguson and Governor Jay Inslee, asking directly how they plan to address various enforcement concerns, such as driving under the influence of marijuana, smuggling across state lines, and underage use. In the words of the letter, Sessions had this to say:
“Please advise how Washington plans to ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent marijuana use by minors.” About the Cole memo, he says, “nothing heroin precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.”
What this means is that Sessions is able to disrupt the marijuana industry if he so chooses, without even having to retract the Cole memo. It is sufficiently ambiguous and vague to accommodate almost any policy, ranging from threats to prosecution and even forfeiture of marijuana merchants and businesses. However, most think that Sessions will negotiate a position in the middle somewhere.
During Sessions’ six-month long tenure at the Justice Department, and despite his obvious hostility toward the legalization of cannabis, his actions have not gone beyond his rhetorical statements of concern. The Justice Department is not prosecuting anyone, there are no forfeitures going on, and marijuana businesses are not receiving letters of threat.
Furthermore, Sessions shows no indication of fighting state cannabis laws in federal court. Despite having the opportunity to take advantage of the Cole Memo’s ambiguity and commit these atrocities, he went to a committee to punt his issue instead. The committee decided to take a wait-and-see approach that many describe as vague and tepid.
Sessions, on the other hand, has been proactive about continuing the war on drugs in other ways. He established a harsher charging policy that will result in more nonviolent drug offenders sitting in jail, and revived federal oversight of state and local civil forfeitures. He may realize that a full-scale crackdown on marijuana would not work in his favor.
Because home cultivation is permissible in all but one of eight states with legalized cannabis laws for recreational use, targeting state-licensed marijuana businesses would encourage the black market and make it harder to see and monitor production and distribution activities. There are also several lawsuits against the federal government, challenging marijuana prohibition and its listing on the Controlled Substances Act.
There is also the issue of Trump. Sessions may be hesitant to irk him further. Trump has been castigating Sessions publicly for weeks over the way he handled the investigation of Russian interference in the U.S. presidential election. Although Trump’s personal views on cannabis remain a mystery, he has repeatedly said that he favors medical use and that states should make their own decisions about recreational use.
For Trump to abandon such a commitment now would be politically risky, especially as most Americans support decriminalizing cannabis and legalizing it in a regulated market. According to a poll by Quinnipiac in 2017, a whopping 71 percent do not think the federal government has any right to impose itself, or even have a say in what states decide.