WASHINGTON (Jan. 4, 2018) – U.S. Attorney General Jeff Sessions plans to rescind an Obama-era policy that de-prioritized federal prosecution of marijuana laws in states that have legalized cannabis. While this provides another opportunity for Sessions to rail against pot, in practice, this will have little to no practical effect.
The 2013 “Cole Memo” outlined Obama administration policy that directed federal prosecutors to take a somewhat hands-off approach in states that have legalized marijuana. While asserting that marijuana is illegal under federal law, the directive prioritized enforcement based on several criteria including preventing the distribution of marijuana to minors, stopping interstate trafficking, stopping drug money from funding gangs and criminal enterprises, preventing drugged driving and a few other priorities.
In other words, the Cole Memo did not end prosecution of federal marijuana laws, but directed prosecutors to focus their limited resources toward enforcing laws that directly related to the listed priorities.
On Thursday, Sessions released a one-page memo rescinding the Cole Memo and directing prosecutors in states with legal marijuana to decide how aggressively they want to prosecute federal law based on their own judgement.
Sessions wrote, “In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions,” by considering the seriousness of the crime and its impact on the community, according to the AP.
CNN called this a “seismic shift.”
It’s no such thing.
In fact, the policy shift is just rhetoric and will have little to no practical effect in the long run.
The federal government doesn’t have the personnel and resources to enforce federal marijuana laws in states where cannabis is legal – no matter what Jeff Sessions wants. Figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. This doesn’t include the cost of prosecution. FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By ending state enforcement of any federal prohibition that is legal under state law, states like Oregon, Colorado and California have swept away most of the basis for 99 percent of marijuana arrests in the state.
Without state cooperation and support, the feds are essentially impotent when it comes to enforcing its unconstitutional marijuana prohibition.
While federal enforcement in states with legal marijuana has significantly impacted individual lives, it has utterly failed to stop the growth of the cannabis industry as states have legalized the plant. The feds have aggressively tried to enforce federal law from the moment California voters legalized medical marijuana in 1996. In fact, the Obama administration spent more money on marijuana enforcement during his term than Bush and Clinton combined – to no effect.
A bill to completely withdraw state support from federal marijuana prohibition enforcement under consideration in California would further hinder the feds. Assembly Bill 1578 (AB1578) would ban the use of “agency money, facilities, property, equipment, or personnel to assist a federal agency to investigate, detain, detect, report, or arrest a person for commercial or noncommercial marijuana or medical cannabis activity that is authorized by law in the State of California.” In addition to blocking local officials from participating in federal-only cannabis prohibition, the law would prevent them from sharing personal information with the federal government about cannabis businesses or consumers who are in compliance with state law.
Congress has further tied Sessions’ hands. In 2014, Congress placed a provision in the Consolidated Appropriations Act providing that “[n]one of the funds made available … to the Department of Justice may be used … to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” in August 2016, the Ninth Circuit Court of Appeals held that federal judges should uphold this provision in the appropriations act by halting prosecutions of people using medical marijuana legally based on their state’s laws.
Congress reauthorized this provision last month in the budget extension, and it will likely extend into the next fiscal year.
In other words, no matter what Sessions says, federal prosecutors cannot prosecute medical marijuana users as long as they abide by state law.
Sessions hates marijuana. He wants to crush legal marijuana in the states. But he’s nothing but an impotent dinasour. Without help from the states and people he can’t do it – no matter how many mandates and policy changes he issues.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE