Justice Department Announces Plans to Enforce Federal Marijuana Laws

Sessions issues new order revoking Obama DOJ’s policy

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January 4, 2018

The Department of Justice announced Thursday the revocation of a 2013 Obama administration order that instructed U.S. Attorneys not to enforce the federal ban on marijuana in states that had legalized and regulated cannabis sales.

The order rescinds a previous guidance related to marijuana enforcement, and instructs U.S. Attorneys to "follow the well-established principles that govern all federal prosecutions."

"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," said Attorney General Jeff Sessions. "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."

The news, first reported by the Associated Press, is expected to add further confusion to emerging medical and recreational marijuana industries and concurrent regulatory schemes at the state level.

The most prominent order Sessions overturned, issued in 2013 by then-Deputy Attorney General James M. Cole and commonly referred to as the "Cole Memo," responded to Colorado and Washington state's ballot-initiative legalization of recreational marijuana. Writing to all U.S. Attorneys, Cole instructed that in such states, federal prosecutors should exercise their discretion to not enforce the federal ban on marijuana if they judged that the existing regulatory regime would be adequate for curtailing drug- and gang-related violence.

This, Cole wrote, was in deference to the traditional apportionment of many drug-enforcement responsibilities to the states, especially where states' regimes did not tread on federal priorities. The policy was also animated by the then-DOJ's belief that such enforcement was not an efficient way to allocate limited resources.

Marijuana is currently listed as a schedule one drug under the Controlled Substances Act by the Drug Enforcement Agency (DEA), a listing that has been preserved since 1970. Schedule one status means that marijuana is considered to have a high potential for abuse and no accepted medical use; schedule one drugs are those which physicians are not allowed to prescribe.

There have been numerous efforts to reschedule marijuana, most recently by Reps. Matt Gaetz (R., Fla.) and Darren Soto (D., Fla.).

However, Sessions has been publicly critical of marijuana legalization, going so far as to argue its abuse is only "slightly less awful" than heroin dependency. In May, he asked Congress to allow his department to prosecute medical marijuana regimes in states where they exist (his request was blocked by the Senate Appropriations Committee).

According to Politico, Sessions had previously privately assured Senators that he would not deviate from the state-discretion approach promulgated by the Obama DOJ. Sen. Cory Gardner (R., Colo.), who represents a state where recreational marijuana usage is legal, responded to the news by attacking Sessions for failing to live up to a promise Gardner said he had made to him.

"I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation," Gardner tweeted.

Although the most vocal, Gardner is not the only prominent Republican who has expressed some sympathy for less marijuana enforcement. Rep. Dana Rohrbacher (R., Calif.) has said that he will take his defense of medical marijuana to the Supreme Court, and Sen. Orrin Hatch (R., Utah) backed medical marijuana research in a pun-laden public statement in September.

The move also earned swift condemnation from proponents of marijuana legalization. Erik Altieri, executive director of the National Organization for the Reform of Marijuana Laws (NORML), said that it, "flies in the face of sensible public policy and broad public opinion."

"The American people overwhelmingly support the legalization of marijuana and oppose federal intervention in state marijuana laws by even wider margin. This move by the Attorney General will prove not just to be a disaster from a policy perspective, but from a political one," Altieri said.

Recent polling found a record 64 percent of Americans believe that marijuana should be legal, including a majority of self-identified Republicans.

Opponents of marijuana legalization were excited by the news, seeing it as a win in what has otherwise been a losing battle.

"There is no more safe haven with regard to the federal government and marijuana, but it’s also the beginning of the story and not the end," Kevin Sabet, president and CEO of Smart Approaches to Marijuana, told the AP. "This is a victory. It’s going to dry up a lot of the institutional investment that has gone toward marijuana in the last five years."

Sessions’s order comes just days after the state of California became the sixth state to issue licenses for the sale of recreational marijuana. It remains unclear as to what impact the order will have on California and other states’ nascent recreational marijuana industries.