Federal Marijuana Enforcement Guidelines: What Really Changes Under the Sessions Memorandum?

On January 4, 2018, U.S. Attorney General Jeff Sessions issued a Memorandum (the “Sessions Memo”) for all United States Attorneys boasting the subject line “Marijuana Enforcement.” The one-page document purports to rescind “previous nationwide guidance specific to marijuana enforcement,” including the 2011, 2013, and 2014 Cole Memorandums (the “Cole Memo”).

Despite talking heads and pundits interpreting the document as having the potential to destroy the nation’s legal cannabis industry, legal experts and industry insiders – ourselves included – aren’t fazed.

Like most of the Trump administration’s statements and actions throughout the past year, the Sessions Memo is little more than bluster and posturing, and this most recent move has very few (if any) teeth to it. While the Memo probably has the greatest implications on attorneys working in the cannabis industry, it will likely have very little effect on existing consumers and business owners.

I.    Background of the Cole Memorandum

The Cole Memo, authored by then-U.S. Attorney General James Cole under President Obama, is a series of documents issued to all Department of Justice Attorneys and published through the Department of Justice (DOJ) that described updates to federal marijuana enforcement policy throughout 2011, 2013, and 2014. It did not create any rights, substantive or procedural, nor did it provide actual legal protection from federal prosecution for cannabis violations under the Federal Controlled Substances Act, nor any other criminal or civil action.

The Cole Memo merely attempted to provide guidance to federal prosecutors and law enforcement agencies on where to focus their efforts with respect to marijuana enforcement, and demonstrate the Department of Justice’s policy position – not legal position – on cannabis. The Cole Memo’s intent was to signal the federal government’s de-prioritization of use of funds and other resources to enforce cannabis prohibition under the Federal Controlled Substances Act.

Under the Cole Memo, federal investigators and prosecutors were directed to utilize government resources for cannabis prohibition enforcement only when the challenged activities violated or threatened one or more of the eight federal enforcement priorities:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the 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 the 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 marijuana possession or use on federal property.

(Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement; Department of Justice, 2013.)

The Cole Memo made clear that marijuana remained an illegal drug under the Federal Controlled Substances Act. However, unless marijuana-related activity occurring in a state  violated these federal enforcement policies and the state failed to address or remediate the issue, federal enforcement agents would continue their policy of relying on state and local governments to regulate this activity as they see fit within their borders through enforcement of their own laws. Much like the current Sessions Memo, the Cole Memo ends by stating attorneys have discretion in their enforcement.

II.    The 2017 Sessions Memo

The Sessions Memo notably begins with a paragraph reiterating that marijuana is still prohibited under the Federal Controlled Substances Act; the introductory paragraph concludes that “marijuana is a dangerous drug and that marijuana activity is a serious crime.”

The next paragraph advises, in consideration of the Department’s finite resources, that “[i]n deciding which marijuana activities to prosecute under these laws” – that is, in exercising their discretion – prosecutors should follow “well-established principles that govern all federal prosecutions” as established in the U.S. Attorneys’ Manual (the “Manual”).

It concludes with a general statement that the U.S. Attorneys’ Manual (“well-established general principles”), not the Cole Memo or other DOJ guidance documents, should be utilized when deciding whether or not to prosecute cannabis activity under Federal law. It also qualifies this advice, stating that the Memo itself is “intended solely as a guide to the exercise of investigative and prosecutorial discretion in accordance with all applicable laws, regulations, and appropriations.” Like the Cole Memo, the Sessions Memo itself does not, and may not be relied upon to, create any substantive or procedural rights in either criminal or civil matters.

An examination of the U.S. Attorneys’ Manual cited in the Sessions Memo directs attorneys – just as did the Cole and other memos – to utilize their discretion in deciding whether or not to expend resources on cannabis prohibition enforcement activity. An examination of these guidelines indicates no substantive or foreseeably impactful departure from the federal government’s current stance toward marijuana enforcement.

Consumers, business owners, licensees, and other industry participants, the sky is not falling.

III.    The U.S. Attorneys’ Manual

Principles of Federal Prosecution

The U.S. Attorneys’ Manual at Chapter 9-27.000 sets forth the Principles of Federal Prosecution (the “Manual”). Under these principles, prosecutors “should commence or recommend federal prosecution if

  • [I] he/she believes that the person’s conduct constitutes a federal offense,
  • [II] that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and
  • [III] that a substantial federal interest would be served by the prosecution, unless, in his/her judgment, prosecution should be declined because
    • (1) [t]he person is subject to effective prosecution in another jurisdiction; or
    • (2) [t]here exists an adequate non-criminal alternative to prosecution.”

(9-27.200 – Initiating and Declining Prosecution – Probable Cause Requirement.)

Substantial Federal Interest

U.S. Attorneys properly exercise their discretion to prosecute a charge when a substantial federal interest would be served by the prosecution, unless certain circumstances exist. In determining whether prosecution should be declined because no substantial federal interest would be served by the prosecution, the attorney is directed to weigh a variety of relevant considerations, including: (A) federal law enforcement priorities, (B) the nature and seriousness of the offense, (C) the interests and damages suffered by any victims, (D) the person’s criminal history, (E) the deterrent effect of prosecution, (F) the person’s willingness to cooperate in the investigation, and (G) the sentence or other consequences for conviction.

While some of these inquiries are fact-specific and may differ among defendants, many are not. Considerations relevant to federal law enforcement priorities, the nature and seriousness of the offense, the person’s criminal history, and the interests and damages suffered by any victims strongly negate any federal argument that a substantial federal interest would be served by initiating cannabis prosecution activity in states that have legalized and successfully regulated cannabis.

           A.              Law Enforcement Priorities

With respect to the federal interest served, government attorneys are advised to “give careful consideration to the extent to which prosecution would accord with these national and local priorities, as well as federal law enforcement initiatives or operations designed to accomplish them, whether on a national level or by important impact on local law enforcement needs.” (9-27.230(B), Comment 1 – Initiating and Declining Prosecution – Substantial Federal Interest.)

The Sessions Memo issued today purports to eliminate the express “de-prioritization” policy expressed in the Cole and other relevant memos, but does not substitute this policy with any other that, for example, increases or otherwise prioritizes federal marijuana prohibition enforcement activity. Instead, now federal prosecutorial discretion is guided only by the U.S. Attorneys’ Manual, which itself recommends that federal enforcement agents not use federal resources to prosecute federal crimes that are not high priorities or do not pose significant dangers to the peace of mind or safety of the collective citizenry.

Even without the Cole Memo, legal structures and policies are already in place across both the states and in the federal government de-prioritizing – or even outright eliminating – any criminal liability with respect to recreational marijuana activity. With respect to states, federal marijuana “crimes” are not crimes at all in jurisdictions that have legalized marijuana; therefore, these non-criminal matters are not high priorities for the criminal prosecutors of these states. With respect to the federal government, since 2014 Congress has prohibited the Department of Justice from using any funds to prevent states from implementing their own laws that authorize the legal use, distribution, possession, or cultivation of medical marijuana (see Section IV: Rohrabacher-Blumenauer, below). This reflects Congress’s express de-prioritization of cannabis prosecution with respect to the federal government’s interest in this activity.

As a result, even without the existence of the Cole Memo, federal marijuana “crimes” – which are not crimes according to state and local jurisdictions that have legalized marijuana – are not high priorities for either federal or state governments. Additionally, marijuana crimes do not pose significant dangers to the peace of mind or safety of the collective citizenry as demonstrated by the successful regulation of cannabis activity in states which have legalized it, as well as the vote of the people who have collectively spoken out in support of it.

Should the U.S. Attorneys’ Office attempt to initiate a federal cannabis prohibition prosecution in one of these states, the Federal Government would be hard pressed to reconcile and justify their enforcement activity with conflicting and clearly expressed federal local de-prioritization of this activity.

           B.              Nature and Seriousness of the Offense

Furthermore, with respect to the nature and seriousness of the offense, in order to ensure that “limited federal resources [are] not wasted in prosecuting inconsequential cases,” prosecutors are again directed in the U.S. Attorneys’ Manual to consider as a primary factor the “actual or potential impact of the offense on the community and on the victim(s).” (9-27.230(B), Comment 2 – Initiating and Declining Prosecution – Substantial Federal Interest, Nature and Seriousness of Offense.) These impacts can be considered in different ways pursuant to the Manual: in terms of (i) economic harm done to community interests; (ii) physical danger to the citizens or damage to public property; and (iii) erosion of the inhabitants’ peace of mind and sense of security.

When evaluating these considerations in the context of the cannabis industry, (i) the economic effects are overwhelmingly and undeniably positive: creating new jobs and generating hundreds of millions of dollars in tax revenue for states that have legalized marijuana. (ii) Strict regulation of the industry in these states also ensures that the industry poses no additional dangers to the citizens or public property within these states. (iii) Also, citizens use their votes to speak with one voice in a democracy, and the national voice is saying that U.S. Citizens want to legalize and regulate the marijuana industry across the country.

As a result, there is no risk for erosion of the country’s peace of mind or sense of security should the federal government continue to utilize their discretion to not prosecute cannabis violations under the Controlled Substances Act – the majority of the country desires this result.

           C.              Damages Suffered by Victims

In evaluating the seriousness and extent of damages suffered by a victim or victims when deciding whether or not to prosecute a federal charge, federal prosecutors must “consider the economic, physical, and psychological impact of the offense on any victims. In this connection, it is appropriate for the prosecutor to take into account such matters as the seriousness of the harm inflicted and the victim’s desire for prosecution.” ((9-27.230(B), Comment 8 – Initiating and Declining Prosecution – Substantial Federal Interest, Interest of Any Victims.)     

In the case of state-sanctioned cannabis activity, strict regulatory structures in these states ensure the industry poses no danger to the citizens or property there. A one-year study published by the Drug Policy Alliance documenting changes in Washington State following it’s passage of I-502, the legalization initiative passed in 2012, showed “violent crime rates have declined, thousands of people have been spared the harmful consequences of a marijuana arrest, statewide rates of youth use and traffic fatalities have remained stable, and state voters continue to support marijuana legalization.” (Drug Policy Alliance, Status Report: Marijuana Legalization in Washington After 1 Year of Retail Sales and 2.5 Years of Legal Possession, 2015.)

As a result, participation in this state-regulated activity does not harm or cause damage to other citizens or property. Federal prosecutors are required to weigh this consideration properly when exercising their discretion to initiate or decline federal charges.

           D.              Criminal History of the Defendant

With respect to individual culpability, even when a federal prosecutor has “sufficient evidence of guilt, it is nevertheless appropriate for him/her to give consideration to the degree of the person’s culpability in connection with the offense […] for example, [if] his/her motive was non-criminal, and no other factors require prosecution, the prosecutor might reasonably conclude that some course other than prosecution would be appropriate.” (9-27.230(B), Comment 4 – Initiating and Declining Prosecution – Substantial Federal Interest, The Person’s Culpability.) In this context, legal marijuana industry participants are required to comply with state regulations, licensing requirements, and other laws. In doing so, their intent is to participate in the marketplace in a way that complies with – not violates – the law.

Any federal law violations that stem from this state-authorized activity are corollary, and an alleged violator’s motive in violating conflicting federal laws is highly non-criminal. In fact, these cannabis industry participants are motivated by and their activities designed around compliance with state law. As a result, federal prosecutors would nearly always be required to consider that any alleged violator’s “motive was non-criminal,” and therefore conclude “some course other than prosecution would be appropriate” in cases involving state-regulated activity.

Additionally, an individual defendant’s criminal history is an appropriate consideration when a prosecutor exercises their discretion to charge or not charge a federal crime. If a person has a prior conviction, or is reasonably believed to have engaged in criminal activity at an earlier time, prosecutors may be more inclined to charge a federal offense. However, attorneys are advised: “particular attention should be given to the nature of the person’s prior criminal involvement, when it occurred, its relationship, if any, to the present offense.” (9-27.230(B), Comment 5 – Initiating and Declining Prosecution – Substantial Federal Interest, The Person’s Criminal History.) Further, “person’s lack of prior criminal involvement or his/her previous cooperation with the law enforcement officials should be given due consideration.” (Ibid.)

While these are often individualized analyses with respect to the circumstances of each defendant charged, in the case of federal prosecution for state-regulated cannabis activity, marijuana business license applicants have already been vetted by the state and their criminal histories examined by state agencies; successful licensees have been found not to be a risk to the integrity of the state’s regulatory scheme. For example, in Washington, when a hopeful marijuana business licensee applies to the Washington Liquor and Cannabis Board, the Board processes a criminal history background check on the applicant, his or her spouse, as well as all other interested parties. The WSLCB then uses a point system in order to determine whether the applicant qualifies for a license; an applicant who has accumulated eight or more points is generally disqualified from obtaining a marijuana business license.

[Read additional information regarding criminal history and cannabis licenses in Alaska, California, Colorado, Nevada, and Oregon from 7 Point Law attorney Aaron Pelley here.]

As a result of the strict regulatory structures – including background checks – enforced by states in which cannabis is legal, state cannabis industry members have already been vetted and disqualified from market participation if their criminal histories pose concerns to the state. A federal prosecutor would have to examine the same criminal history background information and come up with a contrary conclusion should he or she decide to commence prosecutorial action against a Marijuana market participant, which is unlikely to occur under the strict regulatory schemes already enforced by states.

           E.              Alternatives or Substitutes for Criminal Prosecution

Additionally, when deciding whether to initiate or decline federal charges, prosecutors are advised to act in a way that ensures they “respond promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be commenced.” (9-27.250(B), Comment 8 – Non-Criminal Alternatives to Prosecution.) Indeed, “Congress and state legislatures have provided civil and administrative remedies for many types of conduct that may also be subject to criminal sanction.” (Ibid.) The Manual goes on to explicitly recognize that alternative remedies are sometimes more appropriate and effective substitutes for criminal or other prosecution.

In light of the existence of effective regulatory schemes that states like Colorado and Washington have successfully designed and enforced with respect to the licensing and oversight of in-state marijuana businesses, federal prosecutors are required to – even without the Cole Memo –  consider the importance of local governments and administrative bodies in enforcing their own comprehensive legal structures regarding cannabis. If a federal prosecutor did initiate federal criminal cannabis charges, he or she would functionally supersede and impinge the state’s important local values by prosecuting otherwise state-sanctioned marijuana activity. Local government leaders across the country, including Washing State Attorney General Bob Ferguson and Colorado Senator Cory Gardner, responded to last Thursday’s announcement by vehemently rejecting this possibility and releasing statements pushing back on the Sessions Memo. Engaging in such a conflict with local leaders would be a difficult, long, costly, and likely unwinnable battle for the federal government.

IV.    Rohrabacher-Blumenauer Amendment

Despite Attorney General Sessions’ obvious disdain for cannabis, while the Rohrabacher-Blumenauer Amendment is still in effect, the Department of Justice cannot use any funds to prevent the States from implementing their own State laws that authorize the legal use, distribution, possession, or cultivation of medical marijuana.

The Rohrabacher-Blumenauer Amendment was originally passed as law as part of the 2014 Omnibus Spending Bill as the Rohrabacher-Farr amendment; it has subsequently been renewed annually, and creates de facto cannabis legalization. However, a significant weakness to relying on the Rohrabacher-Blumenauer Amendment is that it expires each year and must be voted on again to maintain. The most recent vote on the Rohrabacher-Blumenauer Amendment maintained it as good law until January 19, 2018, at which time another vote will take place as to whether it will remain in effect.

So long as the Rohrabacher-Blumenauer Amendment is good law, there is nothing the Department of Justice can do that will allow it to spend funds on prosecuting otherwise lawful state medical cannabis actors. Please note, the Rohrabacher-Blumenauer Amendment does only apply, per the text of the Amendment itself, to medical cannabis. There is currently no reliable federal guidance on protections for recreational or adult-use cannabis regulatory schemes at this time.

V.    Conclusion

Even without the application of the Cole Memo to federal enforcement guidelines, no substantial federal interest is served by federal prosecution of cannabis crimes. As a result, we predict, “[g]iven the Department’s well-established and general principles” derived from the U.S. Attorney’s Manual, the “exercise of investigative and prosecutorial discretion in accordance with all applicable laws, regulations, and appropriations” will  remain unchanged in the cannabis industry in practice despite the Sessions Memo.

Additionally, so long as the Rohrabacher-Blumenauer Amendment is in place, the Department of Justice may not use any funds to enforce federal cannabis prohibition laws.

In light of this Amendment, the industry’s comprehensive regulatory schemes already in place and enforced by State and local governments, the economic benefit states enjoy from legalizing and regulating these industries, as well as the collective will of the people, the “well-established and general” principles contained in the U.S. Attorney’s Manual will likely result in government actors continuing to exercise their discretion to decline to prosecute or investigate cannabis actors, medical or recreational, under federal law.

Contact us to discuss what the Sessions Memo means for you and your business.

 

 

By: Heidi Urness & Aaron Pelley, Attorneys at Law

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