With One Foot Out the Door, AG Sessions Takes Action Against Cannabis

Any casual observer of Attorney General Jeff Sessions can’t fail to recognize his remarkably antiquated opinions and viewpoints about cannabis and its consumers. Sessions’ backward-looking views, along with whatever actions he undertakes against marijuana, may be the thing he will be most remembered for in his 40-year political career.

It’s not at all surprising that Sessions has finally articulated a policy on enforcing federal marijuana laws that seeks to turn the clock back to at least 2009, by revoking the Cole Memo about federal enforcement in states that have legalized adult use of marijuana. That memo, issued by then-Deputy Attorney General James Cole in 2013, sought to bring some clarity and consistency to how the federal government would handle those states.

The extensive and generally positive media coverage of California’s partial rollout of its voter-approved cannabis legalization on Jan. 1 was just too much for Sessions to bear. Recognizing that the sixth-largest economy in the world has opened the doors to commercial sales, he probably believed that if he did nothing now it would mar his short tenure as the nation’s top law-enforcement officer.

In effect, rather than have a policy that’s helped bridge the wide gap between state-sanctioned cannabis businesses and the total prohibition that remains at the federal level, Sessions’ actions create state-by-state and even intrastate confusion about policy.

The timing of Sessions’ decision is also telling, because, politically speaking, he’s a dead man walking, having lost the support of both the president and powerful members of Congress from his own party. Recently, the Freedom Caucus, the most strident minority among Republicans on Capitol Hill, called for Sessions’ resignation, complaining about perceived Department of Justice leaks and his failure to pursue criminal indictments against 2016 Democratic presidential candidate Hillary Clinton.

With his time as Attorney General very likely limited, there apparently was no way Sessions could resist his most base instincts regarding federal cannabis policy. Now, he can retire and/or get fired, and be able to say that “on my watch, I fought against marijuana legalization.”

The extensive and generally positive media coverage of California’s partial rollout of its voter-approved cannabis legalization on Jan. 1 was just too much for Sessions to bear.

Numerous groups that advocate ending cannabis prohibition—both consumer-oriented ones like NORML and the Drug Policy Alliance, and trade association groups like the National Cannabis Industries Association—are criticizing Sessions’ efforts to stifle the state cannabis-law reforms enacted over the last 22 years, with eight states and Washington, D.C. having legalized cannabis and 21 more allowing some form of medical access.

Within a few hours after Sessions’ Jan. 4 statement revoking the Cole memo, Rep. Dana Rohrabacher (R-CA) and Sen. Cory Gardner (R-CO) publicly decried any federal efforts to interfere with their states’ autonomy. Gardner even threatened that he might hold up Senate confirmation of future Department of Justice nominees. Oregon Gov. Kate Brown, a Democrat, told her staff and state agencies that “we will fight to continue Oregon’s commitment to a safe and prosperous recreational marijuana market.”

Regardless of whether Sessions stays in the Trump administration, any incursion by the Feds against state cannabis programs might very well provoke one or more of them to challenge the federal law in court. In an analogous case, states like New Jersey that have legalized online sports betting and are seeking to regulate and tax it sued the federal government to end its prohibition of online sports gaming. If the Supreme Court, which heard oral arguments on that case in December, strikes down that ban as federal overreach, that could be a helpful precedent if a cannabis case ever reached the Court.

With Arizona, Michigan, New Jersey and Vermont considering cannabis-legalization legislation or ballot initiatives this year, there will be more political pressure on the federal government to abandon its totally failed, unpopular and clearly unsustainable prohibition of cannabis, regardless of what Sessions says or does.

What Sessions Said

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission. Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

What the 2013 Cole Memo Says

“As several states enacted laws related to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from sale of marijuana from going to criminal enterprises, gangs and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing possession or use on federal property.

These priorities will continue to guide the Department’s enforcement of the Controlled Substances Act against marijuana-related conduct.”

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