Steve Schain of Hoban Law Group. Steve Schain of Hoban Law Group.

Is U.S. Attorney General Jeff Sessions threatening to single-handedly crush the $7.2 billion legalized marijuana industry spanning 30 states, generating millions in taxes and providing tens of thousands of jobs?

Just four days after California legalized adult-use marijuana, Sessions rescinded the long-standing “Cole Memorandum” that established the Department of Justice’s internal “enforcement priorities” and formed sole policy protecting adult-use cannabis from federal prosecution.

While unclear if merely a “knee-jerk reaction” to California’s program launch, unless and until the Justice Department provides an official statement, publication or other specific information, neither legalized marijuana’s current status—nor the federal government’s lack of Congressional mandate or funds to derail state programs—has changed.

Medical and Adult-Use Marijuana’s Legal Status

The Comprehensive Drug Abuse Prevention and Control Act of 1970 prohibits marijuana’s manufacture, distribution, dispensation and possession and lists it next to heroin as a Schedule I controlled substance having “a high potential for abuse” for which there’s “no currently accepted medical use in treatment.” Those manufacturing, distributing, or dispensing marijuana, or touching it at some point along the supply chain (e.g., planting, cultivating, harvesting, processing/extracting, testing, packaging, disposing, transporting and dispensing), are deemed “plant-touching” marijuana related businesses (MRBs).

Presently, 30 states, the District of Columbia and the commonwealths of Guam and Puerto Rico have legalized marijuana programs protected from federal interference by the Rohrabacher- Blumenauer Amendment which, in turn, incorporates the Justice Department’s Cole Memorandum policy.

Originally passed as an attachment to the commerce, Justice, and science appropriations bill for fiscal year 2014, repeatedly renewed, and commonly known as the known as the Rohrabacher- Blumenauer Amendment, the law prohibits the Justice Department from using federal funds to prevent certain states “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

The Rohrabacher-Blumenauer Amendment incorporates the findings of Justice Department “policy clarifying” memoranda restraining U.S. Attorneys’ CSA enforcement in legalized marijuana states (hereinafter, collectively referred to as Cole Memorandum). Specifically, the Cole Memorandum encompasses the Ogden Memo of 2009, the Cole Memorandum of June 29, 2011, the Cole Memorandum of Aug. 29, 2013, and several supplemental memoranda published by Cole, including a 2014 memorandum addressing marijuana and financial crimes and a 2014 memorandum addressing “marijuana in Indian Country.”

While reiterating marijuana’s CSA illegality, the Cole Memorandum instructs focusing federal resources on “most significant threats in the most effective, consistent, and rational way” listing “eight enforcement priorities” of preventing: distribution of marijuana to minors; marijuana sale revenue going to criminal enterprises, gangs, and cartels; diversion of marijuana from states where it is legal under state law in some form to other states; state-authorized marijuana activity from being used as a cover or pretext for trafficking of other illegal drugs or other illegal activity; violence and use of firearms in marijuana’s cultivation and distribution; drugged driving and exacerbation of other adverse public health consequences associated with marijuana use; growing of marijuana on public lands and attendant public safety and environmental dangers posed by marijuana production on public lands; and marijuana possession or use on federal property.

Impact of Cole Memorandum’s Rescission—’U.S. Attorneys’ Manual’

In a Jan. 4, 2018, dated internal guidance to all U.S. Attorneys titled “Marijuana Enforcement,” Sessions rescinded some of his office’s prior guidance instructing that, like its predecessors, his guidance creates no “rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal” (Session Memorandum).

Stated another way, the Session Memorandum does nothing more than re-state that each U.S. Attorneys’ office has discretion in choosing which laws to enforce pursuant to the U.S. Attorneys’ Manual, an internal Justice Department document functioning as a set of standard operating procedures.

Drafted in 1980 as a statement of federal law enforcement principles, the manual ensures “the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government” and promotes “confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of the facts and circumstances of each case.”

In the absence of the Attorney General’s specific direction, the manual defines the U.S. Attorneys’ Office operations ranging from “criminal prosecutions” to “personnel management.”

Stated another way, like the Cole Memorandum, the manual is little more than an employee handbook.

‘Substantial Federal Interest’ Required to Prosecute

In a section titled “Principles of Federal Prosecution,” the manual provides that to commence a prosecution the U.S. Attorney must believes that the conduct: constitutes a federal offense, that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and that a substantial federal interest would be served by the prosecution.

In determining whether a prosecution serves a “substantial federal interest”, the Manual instructs weighing relevant considerations, including:

  • Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
  • Nature and seriousness of the offense;
  • Deterrent effect of prosecution;
  • Person’s culpability in connection with the offense;
  • Person’s history with respect to criminal activity;
  • Person’s willingness to cooperate in the investigation or prosecution of others;
  • Interests of any victims; and
  • Probable sentence or other consequences if the person is convicted.

Mirroring the Cole Memorandum, the manual acknowledges that the Justice Department needs to prioritize its use of federal resources and instructs that, in assessing offense’s seriousness, must weigh “whether the violation is technical or relatively inconsequential in nature and what the public attitude may be toward prosecution under the circumstances of the case” including that the public “may be indifferent, or even opposed, to enforcement of the controlling statute whether on substantive grounds, or because of a history of non-enforcement, or because the offense involves essentially a minor matter of private concern and the victim is not interested in having it pursued.”

Legalized Marijuana Prosecutions Following ‘Sessions Memorandum’

Ultimately, rescinding the Cole Memorandum has no impact on federal prosecution of state legalized marijuana programs participants.

Medical marijuana programs (comprising 22 of the 30 legal marijuana states) remain bulletproof under the Rohrabacher-Blumenauer Amendment, which, to remain in effect, must be included in every subsequent spending appropriations bill providing funds to the Justice Department.

While less invulnerable, adult-use marijuana participants cannot be prosecuted without the U.S. Attorney’s Office demonstrating a substantial federal interest like avoiding the use of firearms, cartel activity, and money laundering, which, in turn, must be weighed against public attitude toward offense’s prosecution.

Further, because the broad prosecutorial discretion given to the U.S. Attorneys nationwide may result in disparate and discriminatory treatment among the federal districts, federal legislators may be forced to clarify the regulatory limits of marijuana under federal law.

Steven Schain practices marijuana law through national cannabis law firm Hoban Law Group. With 14 offices and 42 lawyers, Hoban Law Group’s practice is 100 percent devoted to cannabis and hemp law. Admitted to practice in Pennsylvania and New Jersey, Schain represents entities, governments and individuals in choosing a structure, preparing and submitting license application, regulation, compliance and litigation, and drafting legislation. Contact him at steve@hoban.law.