On January 4, Jeff Sessions’ Justice Department issued a new Memo on Marijuana Enforcement that has left many people in states that allow marijuana confused or worried. The feds dropped this news just as California and its many cities are getting their new cannabis regulation systems going. For the first time in California, cannabis will be grown, distributed, and sold in a highly regulated environment. Substantial new tax money and jobs will be created in the state. Many have wondered, should they scrap their cannabis licensing plans and pick a new line of work?
The Jeff Sessions memo promises “a return to the rule of law” and “directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.” In practice, this means that each U.S. Attorney in each of the nation’s dozens of judicial districts can set their own policies on marijuana prosecution, ranging from hands-off to aggressive.
For at least the time being, people in California, and other states that allow medical marijuana, can be assured that the federal government will not criminally prosecute them for medical marijuana activity that complies with state law. Since December 2014, the federal Rohrabacher-Farr amendment (named after two California congressmen, one Republican and one Democrat) has prohibited the Department of Justice, which prosecutes federal criminal cases, from spending any funds to prevent any states from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Federal case law (the 9th Circuit McIntosh case) has interpreted this to mean that criminal defendants in federal court have a defense to any federal criminal prosecutions that target them for medical marijuana activity allowed by state law. As a result, federal prosecutors are prevented from prosecuting any such cases in court, and people have de facto protection under federal law, even though marijuana use, possession, cultivation, and distribution remain criminal in all circumstances under federal law.
Various short-term provisions have extended the Rohrabacher-Blumenauer amendment over time. Unfortunately, the budget rider expires on January 19, 2018. Based on the repeated times it has been extended already, however, and the shifting public opinion since it was first implemented in favor of marijuana legalization, we believe that the amendment will be extended again.
We are hopeful that the federal government will soon legalize marijuana at the national level, leaving it up to the states to implement their own policies. The President, Congress, or the Courts have the power to do this at any time. Until that happens, we hope that Congress will extend Rohrabacher-Blumenauer and pass a new amendment that would apply the same principles to protect adult-use, non-medical marijuana, in states that allow it.
Additionally a number of bills are gaining momentum as a result of the announcement. Congresswoman Barbara Lee recently introduced H.R. 4779 the Restricting Excessive Federal Enforcement and Regulations of Cannabis (REFER) Act. Additionally, H.R. 975 (Respect State Marijuana Laws Act of 2017) continues to gain co-sponsors in response to the Sessions announcement.
For now, medical marijuana cultivation, sales, and distribution remain protected from federal prosecution as long as they comply with state law. Recreational marijuana remains in a gray zone, clearly legal under state law, but illegal under federal law, and without any protection from federal prosecution.
The full DOJ memo can be found at this link: https://www.justice.gov/opa/press-release/file/1022196/download.