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Jeff Sessions, the Cole Memos, and Marijuana Legalization

“. . . marijuana is a dangerous drug and . . . marijuana activity is a serious crime.”

In a terse one-page memorandum dated January 4, 2018, directed to all United States Attorneys, Attorney General Jefferson Sessions rescinded several marijuana enforcement guidance documents previously issued by the United States Department of Justice. Two notable memoranda included in this rescission are the so-called Cole memos of August 2013 and February 2014.

Session’s action has, in some quarters, caused fear and consternation about the future of state-legal marijuana activity in the face of a possible federal crackdown.

We believe that this reaction is largely misplaced. Here’s why:

The Cole memos never provided legal protection from federal law enforcement for state-legal marijuana activity. The 2013 memo, which established the eight federal enforcement priorities, explicitly stated that it was not changing the authority of federal law enforcement to prosecute federal marijuana law violations. “This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.” Moreover, it made clear that it was not creating any legal defense at the federal level to marijuana crimes. “This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.”

The Cole memos simply provided a policy statement about the enforcement priorities of the Department of Justice, nothing more. They felt good but provided no legal protection.

Before the Cole memos, during their existence, and after AG Sessions’ recent action, federal law prohibited virtually all marijuana-related activity. Careful lawyers have always known this and have advised clients considering action authorized by state law about the risk of possible federal arrest and prosecution, notwithstanding the Cole memos.

a marijuana leaf and a judge's gavel, the Cole Memo affects federal legal action on marijuanaWe now know that AG Sessions really wants federal law enforcement to pursue federal marijuana law violations. But based on many public statements he’s made in the past, that’s nothing new. The Rohrabacher–Blumenauer law, which was adopted by the US Congress in December 2014, remains a critical and legally enforceable element in the protection of state-legal medical marijuana activity. This law prohibits the Justice Department from spending funds to interfere with the implementation of state medical marijuana laws and has been interpreted at the Federal Court level to prevent the federal prosecution of state-legal medical marijuana activity. We know that AG Sessions opposes this law, and in a May 1, 2017, letter to the leadership of the US Senate and House of Representatives, urged those leaders to oppose the continuation of this congressional prohibition.

Regardless of What Sessions Thinks, The Tide is Turning.

We are also aware of an ever-expanding body of anecdotal and scientific evidence that marijuana has true medical benefits for many afflictions, and we know that the “sky is falling” predictions of those who oppose legalization are false. We know that a growing number of Americans, now at 62% according to Gallup polling, support the complete repeal of marijuana prohibition, and we know that the forces of democracy are at work in most of our states and have adopted sensible licensing and regulatory regimes within which marijuana is moving into the mainstream.

Fear and consternation are exactly the reactions AG Sessions hope his action will inspire. But his decision to rescind the Cole memos and related policy statements do not change the law one iota. His views on marijuana are based on Reefer Madness, are out of step with science and experience, and do not circumvent much of the law now in place to protect the careful development of state legal activity. If we take a deep breath and assess where we are, we will quickly conclude that marijuana legalization is on a path that is no different today than before Sessions’ actions. Despite his personal wishes to turn back the clock, marijuana legalization is a force that AG Sessions will not be able to stop because it is based on wisdom and justice.