Sessions Injects Uncertainty into Cannabis Practice

Within four days of the effective date of California’s legalization of recreational marijuana  (January 1, 2018), Attorney General Jeff Sessions cast a pall over America’s burgeoning $7 billion cannabis industry that now encompasses 30 states, the District of Columbia, Guam and Puerto Rico, and is already generating hefty state tax revenues and creating thousands of jobs. Sessions threw uncertainty into this rapidly expanding economic sector by rescinding the “Cole Memorandum” that laid out the Justice Department’s enforcement priorities, basically saying that the Department would not prosecute marijuana use by adults. The Cole Memorandum was incorporated by the Rohrabacher- Blumenauer Amendment to the Commerce, Justice, and Science Appropriations Act for Fiscal Year 2014, which effectively protected state legalization programs from federal interference. The Amendment has been renewed every year since then.

The operative federal statute, The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (Oct. 27, 1970), prohibits the manufacture, distribution, dispensation and possession of marijuana and labels it a Schedule I controlled substance having “a high potential for abuse” for which there’s “no currently accepted medical use in treatment.”

Sessions’ rescission simply restates standard Justice Department policy that each U.S. Attorney’s office has discretion in choosing which laws to enforce pursuant to the U.S. Attorneys’ Manual. However, the implications regarding the rescission’s impact on enforcement of the 1970 Act could be a warning shot across the bow of state legalization activities.

We were at a similar point prior to the promulgation of the Cole Memorandum. California, for example, authorized the use of medical marijuana, stimulating a nascent industry that included growers, distributors, and retailers. Nevertheless, the Obama Justice Department selectively cracked down on a number of these industry players.

Today, state medical marijuana programs (currently legal in 22 states) are safe from federal prosecution, protected by the Rohrabacher-Blumenauer Amendment. The Amendment, however, is only effective if it is included in every annual Justice Department appropriations bill.

That bar, however, does not extend to state recreational marijuana programs now authorized in seven states and the District of Columbia. This would have a profound impact on the many law firms and hundreds of attorneys who are already active in cannabis practice as well as on those who aspire to building a marijuana law practice.

With the Cole Memorandum’s rescission, an attorney’s ability to effectively practice cannabis law may depend on how the broad prosecutorial discretion given to the U.S. Attorney in a legalization state is exercised. The uneven exercise of that discretion and/or the uncertainty Sessions’ action has injected into the industry may prompt Congress to clarify the current confusion in the law.