Connecticut state officials started to participate in the marijuana trade two years ago, when the Department of Consumer Protection began accepting fees for lucrative licenses to operate dispensary facilities pursuant to newly enacted legislation. Law firms counseled the businesses that sought to engage in the sale of marijuana as was authorized by state law.
At the time, we cautioned lawyers and the public from getting involved in the marijuana trade, regardless of the state’s new legislation (“Marijuana and the Rule of Law,” Connecticut Law Tribune, April 8, 2014). We explained that there remained no question that marijuana’s “sale or use is flatly illegal under federal statutory law. The Controlled Substances Act, which was adopted by Congress in 1970, creates five tiers of restricted drugs. Marijuana is currently classified by the federal government as a Schedule I drug, which makes its possession a violation of federal law. The federal ban on marijuana has been upheld as a valid use of Congress’s interstate commerce power by two decisions of the U.S. Supreme Court — United States v. Oakland Cannabis Buyers’ Cooperative in 2001 and Gonzales v. Raich in 2005.” We opined that lawyers should not ignore the federal law, even if the state Legislature and state Department of Consumer Protection were doing so, but rather they should seek to change it if they believed that the law was imprudent. Nonetheless, the sale of marijuana has continued as a state-sanctioned trade, all with the help of lawyers.
At the beginning of the year, the U.S. Department of Justice explained that, even if the prior administration did not enforce the federal law, the new administration would. Nothing changed in the law. All that changed was a memo by U.S. Attorney General Jeff Sessions rescinding “the Cole memo,” which had discouraged federal drug prosecutions where the conduct was legalized by state law. The attorney general’s 2018 memo makes clear that those who have broken federal law are subject to federal criminal prosecution, regardless of whether state officials approve of their conduct.
Newly appointed U.S. Attorney John Durham now has the authority to prosecute businesses that entered the marijuana trade and those lawyers who, as arguably co-conspirators, helped them to do so. He can prosecute marijuana lawyers with the same vigor that the DOJ prosecuted attorneys during its mortgage fraud crackdown under the prior two administrations. We ask him to refrain. While lawyers would have done better to heed our advice from two years ago, it would be unfair to pursue prosecutions for conduct that was then permitted under state law and was at least tolerated by federal officials.
However, to the lawyers involved in the trade, the Sessions memo is a wake-up call. We say it again, as we said it 2014, you cannot simply disregard a federal criminal law because you disagree with it. Your remedy is to urge Congress and the attorney general to declassify marijuana from its list of Schedule I drugs so that its possession would no longer be barred by federal law or to use the power of their vote to elect federal leaders who will change the federal law.
The sale or use of marijuana is a crime. Connecticut residency doesn’t immunize a person from potential federal prosecution. U.S. Attorney Durham should give corporations and their lawyers the opportunity to cease any present marijuana-related activities. Prosecutions should look forward, not backward. And lawyers should walk away with the lesson that it is our obligation to follow the rule of law, or risk the consequences for failing to do so.