It’s a new year, full of new laws and new policies. California rang in the new year with its law legalizing recreational pot coming into effect, just as Attorney General Jeff Sessions announced that the Trump administration had decided to remove the Obama-era policy which prevented federal authorities from enforcing federal drug laws in states where the drug was legal.
What was the Obama-era policy?
Essentially, the Obama administration removed marijuana from the list of drugs they would prioritize enforcing as states began to legalize it. When the agencies did decide to enforce the law, the purpose was to prevent profits from going to drug cartels and to prevent distribution to minors. In the past ten years alone, the pot industry has become a multimillion-dollar business, which has helped fund schools, law enforcement programs, and public education. Eight states and the District of Columbia have passed laws allowing recreational use of marijuana. California is expected to be a behemoth, bringing in $1 billion annually in tax revenue within the next few years.
The policy was likely more reflective of the changing attitudes concerning the drug. In October 2017, a Gallup poll reported that 64 percent of Americans were in favor of legalizing marijuana for recreational purposes – the highest ever reported since the poll began asking this question in 1969.
What is the Sessions policy?
All Mr. Sessions has done has rescinded the memo and guidelines of the Obama administration requiring federal prosecutors and enforcers to step away from prioritizing marijuana enforcement. While Sessions himself has viewed marijuana as a ‘public menace’ and has likened it to heroin, the rescission of the policy is not nearly so dramatic as some news sources would lead you to believe. The new policy is that U.S. attorneys across the country will now be able to decide, in their own departments, how they will use federal resources in enforcing marijuana – even in states where the drug use is legal. Each attorney has the discretion as to how and when they will prosecute marijuana crimes under federal law.
What will change?
It really depends on the jurisdiction. Some U.S. attorneys have announced that their own enforcement policies will not change. Robert Troyer, the interim U.S. attorney for Colorado said that their enforcement cases regarding marijuana will be similar to before, with resources going to the identification and prosecution of the largest threats to the safety of communities in the state. The memo still does not authorize federal agencies from going after individual users, and therefore the focus remains clear – federal resources should be used to tackle large-scale distributors and those with ties to cartels and gangs.
The biggest issue facing states and those within the marijuana industry is confusion as to the state of the law. Retail owners are worried their businesses and investments could be harmed, and voice concerns about ripple effects that have not been considered.
While the new memo reverses the enforcement priorities of federal agencies, a major concern for marijuana users, distributors, and criminal defense attorneys, is the order from Sessions concerning mandatory minimum sentences for lower-level drug offenders. The Obama predecessor, Eric Holder, advised federal prosecutors against seeking out the mandatory sentences when lower-level, non-violent drug offenders were being prosecuted. Jeff Sessions has issued an order demanding the opposite, advising prosecutors to always pursue the most serious charges possible. Therefore, the stage has been set for chaos, with state business owners, who have broken no state laws, potentially being prosecuted and heavily sentenced if convicted, for running otherwise legal marijuana businesses.
What about medical marijuana?
The memo remains medical marijuana policies within states largely untouched, thanks to a budget rider passed by Congress which prevents the Department of Justice from using federal funds to enforce the law against medical marijuana establishments in states where its use is legal for those purposes. There will be confusion for retailers that engage in both sales of recreational and medicinal marijuana, not to mention difficulties facing federal agents in investigating and prosecuting their sales.
Overall, much of Sessions’ memo appears to be overblown – there does not seem to be a massive influx of U.S. attorneys jumping to prosecute marijuana in states where it has been legalized. However, the more concerning aspect is if that changes, and prosecutions become more frequent, will marijuana retailers with no criminal background and no state violations face mandatory minimum sentences for their businesses? That remains to be seen.