By Jacob Sullum, Reason.com
Despite Attorney General Jeff Sessions’ well-known anti-pot prejudices, a broad federal crackdown on marijuana in states that have legalized it seems unlikely in light of the recommendations from a Justice Department subcommittee charged with studying the issue.
The Associated Press reports that the panel, part of the DOJ’s Task Force on Crime Reduction and Public Safety, “has come up with no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views.”
According to the A.P., which obtained a copy of the unpublished recommendations, the subcommittee does say officials “should evaluate whether to maintain, revise or rescind” the 2013 memo from Deputy Attorney General James Cole that established a policy of prosecutorial restraint regarding state-licensed marijuana businesses. But the report does not settle on any of those options, and so far Sessions seems inclined to use the Cole memo as a guide to enforcement rather than scrapping it.
The memo, which Sessions has called “truly valuable in evaluating cases,” leaves lots of leeway for more vigorous enforcement of the federal ban on marijuana. It lists eight “enforcement priorities” that could justify federal action against state-licensed marijuana producers and distributors, several of which are either impossible to fully achieve (e.g., “preventing the diversion of marijuana from states where it is legal…to other states”) or so broad that they could always be used as a pretext for a crackdown (e.g. preventing “adverse public health consequences associated with marijuana use”).
As Mike Riggs noted here last Friday, Sessions recently sent Washington Gov. Jay Inslee and Attorney General Bob Ferguson a letter asking how they plan to address several concerns related to the enforcement priorities, including interstate smuggling, stoned driving, and underage consumption. “Please advise as to how Washington plans…to ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent marijuana use by minors,” Sessions wrote. He also pointedly noted that the Cole memo says “nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.”
In short, Sessions could cause a lot of trouble for the newly legal cannabis industry without bothering to retract the Cole memo, which is vague and ambiguous enough to accommodate policies ranging from laissez-faire to prosecution and forfeiture threats that put many or most marijuana merchants out of business. There are several reasons to think Sessions’ approach will land somewhere in the middle.
Sessions has been in charge of the Justice Department for six months, and so far his hostility toward marijuana legalization has not gone beyond rhetorical expressions of concern. It has not resulted in prosecutions, forfeitures, or even threatening letters to cannabusinesses. Nor has Sessions signaled that he plans to challenge state marijuana laws in federal court. Instead he punted the issue to a committee, which settled on a wait-and-see position that the A.P. describes as “tepid” and “vague.” By contrast, Sessions acted swiftly to step up the war on drugs in other ways, reviving federal “adoption” of civil forfeitures initiated by state or local agencies and establishing a tougher charging policy that is apt to result in more mandatory minimum sentences for nonviolent drug offenders.
Sessions may recognize that a full-blown cannabis crackdown would not necessarily deliver results he would like. Since all but one of the eight states that have legalized marijuana for recreational use allow home cultivation, shutting down state-licensed cannabusinesses would undermine federal enforcement priorities by making production and distribution less visible and harder to monitor. Likewise a lawsuit that successfully challenged state licensing and regulation of marijuana merchants as contrary to the Controlled Substances Act.
Sessions also may be reluctant to further irk a boss who has been publicly castigating him for weeks over his handling of the investigation into Russian meddling in the presidential election. Although the A.P. says the president’s “personal views on marijuana remain mostly unknown,” Trump during his campaign repeatedly said medical use of the plant should be allowed and that states should be free to legalize recreational use as well (although he does not think that’s such a good idea). Abandoning that commitment would be politically risky for Trump, given that most Americans support marijuana legalization and even more—71 percent, according to a 2017 Quinnipiac poll—say the federal government should not interfere with it.