On Thursday, United States Attorney General Jeff Sessions issued a memorandum in the Department of Justice (DOJ) that many people are concerned will lead to a crackdown by the US government on people acting in compliance with state laws under which, in varying ways, the growth, distribution, sale, possession, and use of marijuana is legal. While the issuing of the memorandum is an important development, there are several reasons to expect that the public support for, and the momentum in favor of, marijuana legalization will overpower any potential US government effort to counter states’ legalization.
In the memorandum, Sessions addresses prior DOJ guidance regarding marijuana prosecutions that included suggesting the exercise of limited restraint in prosecuting some people whose actions comply with state marijuana laws but violate US marijuana laws. Sessions declares that guidance “rescinded, effective immediately.” In the place of the prior guidance, Sessions writes: “In deciding which marijuana activities to prosecute under these laws with the [DOJ’s] finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions.” Sessions elaborates that these principles “require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
Most important is what Sessions did not include in the memorandum. He does not provide guidance that prosecutors should start prosecuting any people complying with state or local marijuana laws that prosecutors have been refraining from prosecuting. In fact, though well-known for his anti-marijuana rhetoric, Sessions declined to direct or even suggest any increase in marijuana prosecutions whatsoever.
While Sessions’ memorandum stripped away some guidance favorable to people complying with state marijuana laws, it is wrong to characterize that previous guidance as providing secure protection for people complying with state and local laws legalizing marijuana. Indeed, the earlier guidance provided much wiggle room for prosecutions of such individuals. Writing in March about the August of 2013 “Cole memorandum” that laid out much of the guidance for restraint, I discussed several of the avenues that memorandum’s guidance left open for prosecutions. I wrote in part:
The Cole memorandum itself provides Sessions and the DOJ with significant avenues for expanding marijuana prohibition enforcement. The memorandum states that “attorneys and law enforcement” are directed to “focus their enforcement resources and efforts, including prosecution, on persons or organizations whose conduct interferes with” any of eight listed priorities, “regardless of state law.” Included among the listed priorities are preventing distribution of marijuana to minors, preventing diversion of marijuana from states where it is legal to states where it is illegal, and preventing drugged driving and the exacerbation of other public health problems from marijuana use.
In short, even before Sessions issued his Thursday memorandum, a large factor restraining US attorneys from pursuing marijuana prosecutions was their own exercise of self-restraint. Guidance from DOJ leadership likely helped encourage prosecutors to exercise more of such restraint, but it also left plenty of room for prosecutions of people complying with state and local marijuana laws.
Indeed, after Sessions issued his marijuana memorandum, several US attorneys quickly announced that the memorandum would have minimal or no effect on their marijuana prosecution activities. For example, Bob Troyer, the US attorney for Colorado (one of the two states where recreational marijuana was first legalized via votes on ballot measures in 2012), indicated in a Thursday press release that, for US prosecutors in Colorado, the Sessions memorandum changes nothing:
Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions. The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state. We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.
Even if the DOJ wanted to significantly increase arrests and prosecutions of people complying with state marijuana legalization, it would find itself largely on its own, without help from state and local governments in the eight states and Washington, DC that have adopted legal recreational marijuana. Among these states is California, America’s most populous state, where legal sales of recreational marijuana began last week. Given the vast state-legal marijuana operations already in place and their expected expansion into more states in the coming years, pursuing such a major marijuana law enforcement effort would look ludicrous to many. Making a bold statement against legal marijuana and in favor of the US government’s war on the plant is one thing; expending a great amount of resources to stand in front of the powerful legalization locomotive and be run over by it is another.
Supposing the US government proceeds to engage in mass arrests of people complying with state marijuana laws, how does it propose to obtain from juries unanimous guilty verdicts? Jury nullification would be a real challenge in mass prosecutions in these states. In fact, with the strong support for marijuana legalization in America generally and the growing number of state governments moving toward legalization, fear of jury nullification and loss of public support should lead prosecutors to be more reluctant to pursue marijuana cases even in states where prohibition persists.
And marijuana prohibition can be expected to steadily erode over the coming years. The two state governor elections held in November were both won by candidates who promoted rolling back marijuana laws in their election platforms. In Virginia, the governor-elect campaigned for marijuana decriminalization, while, in New Jersey, the governor-elect campaigned for legalization. Phil Murphy, who will be sworn in as the New Jersey governor later this month, has said marijuana legalization will be one of his priorities this year. Meanwhile, Vermont may as soon as this month become the first state to legalize marijuana via a bill passed by a state legislature and signed by a state governor instead of via a ballot measure. And much more legalization and decriminalization seems likely to occur soon across the country.
Overall in America the support for legalization indicated in an October Gallup poll was 64 percent. This total not only shows a high level of support. It also fits into a trend of increasing support over decades of polling. As Justin McCarthy wrote at the Gallup website:
Gallup first asked national adults about their views on the topic in 1969, when 12% supported legalization. Support had more than doubled by the end of the next decade but changed little throughout the 1980s and 1990s. By 2001, however, about a third of Americans favored legalizing marijuana, and support has steadily increased since. A majority of Americans have consistently supported legalizing marijuana since 2013.
An October Pew Research Center survey finds similarly that 61 percent of polled Americans say marijuana should be legalized — double the support registered in the year 2000.
As would be expected, polling further indicates the percentage of Americans opposing the US government enforcing US anti-marijuana laws in states that have legalized medical or recreational marijuana is even greater than the percentage supporting legalization.
The growing majority support among Americans for marijuana legalization, along with the increasing number of states adopting medical and recreational marijuana legalization, as well as state and local enactment of decriminalization, have helped produce much greater resistance in the US Congress to US marijuana prohibition and, especially, to US government efforts in contravention of state and local liberalization of marijuana laws.
While congressional leadership has prevented bills focused on rolling back the war on marijuana from reaching the House and Senate floors for debates and votes, partial hemp legalization was achieved via the 2014 farm bill and provisions intended to require the US government to respect liberalized state laws regarding medical marijuana have made it into law via amendments to appropriations legislation. Absent leadership resistance, more roll backs of the war on marijuana likely would have passed in Congress.
Notably, the medical marijuana provisions that have since 2014 been included in successive DOJ appropriations bills are intended to impose a legal restraint on prosecutions of people complying with state medical marijuana laws, and Sessions has no power to override such provisions. As I discussed in an August of 2016 article, a decision by the Ninth Circuit found the provisions protect people complying with state medical marijuana laws from prosecution by the US government. But, I also noted that the means to ensure full and lasting protection across America would be to enact a law that provides more unambiguous protection than the language in successive appropriations bills and that ensures the protection is not in jeopardy of disappearing each time appropriations are considered in Congress.
While the top leaders of the Republican majorities in the US House and Senate are not suggesting they will support legislative action to roll back the US government’s war on marijuana, the top Democratic leaders in the House and Senate have spoken against the threat to state-legal marijuana suggested by Sessions’ memorandum. Senate Democratic Leader Chuck Schumer (D-NY) wrote at Twitter that Sessions’ “decision to rescind the Cole memo was a very bad” decision that Schumer opposes, as well as that “recreational & medical marijuana” are “one place where states’ rights works.” Also, House Democratic Leader Nancy Pelosi (D-CA) stated in a press release in response to Sessions’ memorandum her support for continuing to include the medial marijuana protection in the appropriations bills while also noting that “Congress should now consider expanding the provisions to cover those states that have decriminalized marijuana generally.” This is an approach that leadership across-the-board can hopefully soon support, with the clarification that legalization, in addition to decriminalization, should be protected. Even better, legislation could be passed to entirely end the US government’s prohibition on marijuana (both medical and recreational) and hemp, leaving state and local governments to deal with such matters as they choose.
At Marijuana Moment, Tom Angell has posted a compilation of Twitter posts from American politicians, including US House and Senate members, expressing opposition to the Sessions memorandum and the potential arrests and prosecutions the memorandum suggests could start occurring. Notably included in the compilation are comments from Republican politicians. Some of these Republicans, such as Sen. Cory Gardner (R-CO) who says he is prepared to hold back action on all DOJ nominations in response to Sessions’ action and Sen. Lisa Murkowski (R-AK) who says she “repeatedly discouraged Attorney General Sessions from taking this action” that she terms “disruptive to state regulatory regimes and regrettable” are from states that have legalized recreational marijuana.
Even in states that have yet to adopt recreational or even medical marijuana legalization, we should expect more congressional Republicans (a much higher percentage of whom have opposed roll backs in the war on marijuana than have their Democratic colleagues) to challenge portions of or all of the US government’s war on marijuana. Last year, for the first time, Gallup’s periodic polling on marijuana legalization found majority support for legalization among Republicans. And that majority support can be expected to increase as younger Republicans are the most supportive of legalization among Republicans. Expect less and less Republican House and Senate members to support the war on marijuana as their states roll back marijuana prohibition or as the majority of their general election voters, or even just a substantial enough minority of their primary voters, become legalization advocates.
Keep in mind as well that in politics money talks. Marijuana has increasingly become a big state-legal business in America since California voters approved medical marijuana legalization in 1996. Companies in the new legal industry and their employees can be expected to spend some dollars pushing back against a US government crackdown should one occur.
Sessions’ marijuana memorandum so far has amounted to all bluster and no action. Maybe that is how he wants it — an opportunity to state as policy his anti-marijuana views for all to see without directing actions that would meet head-on the growing majority public support for marijuana legalization, the strong momentum for legalization’s expansion across the country, and the growing rejection among Congress members of US government marijuana law enforcement efforts. Sessions must know that, if the US government pursues large-scale action against people complying with state marijuana laws, the backlash would be powerful. Indeed, such enforcement action may be the surest way to accelerate the progress toward the Congress finally voting to pull the plug on the US government’s marijuana prohibition.
