Sessions’ New Marijuana Policy Is a Tweak, Not a Sea Change

Perhaps motivated by California’s legalization of recreational marijuana, which just became effective at the beginning of the year, Attorney General and longtime cannabis opponent Jeff Sessions recently issued a brief statement changing the Department of Justice’s approach to marijuana, even as support for marijuana legalization is hitting all-time highs. Over the course of the Obama Administration, Deputy Attorneys General David Ogden and James Cole had issued increasingly detailed and refined guidance, instructing U.S. Attorneys to take a largely hands-off approach to marijuana to the extent it was legal under state laws; federal authorities would focus on enforcing certain red lines such as sales to minors, use of weapons or violence, and interstate trafficking. With the clarity of these guidance memos, participants and investors in marijuana markets – first medicinal and, more recently in a few places, recreational – developed a comfort level that, as long as they carefully observed state requirements, the risk of federal prosecution was remote (even though there continued to be tension between state laws and the federal Controlled Substances Act). Now Attorney General Sessions has rescinded all of that guidance, sparking a blaze of consternation among industry observers.

But signs are that the impact of Sessions’ change will be limited. First of all, the new policy does not mandate a hard line against marijuana, instead leaving decisions about enforcement priorities to regional U.S. Attorneys, who have limited resources and generally bring fairly few pure marijuana cases. Some prosecutors, such as the U.S. Attorney in Colorado, where recreational use is already legal under state law, bluntly stated that they would not change their approaches in response to the Sessions memo. Although the newly appointed U.S. Attorney for Massachusetts, Andrew Lelling, was less clear, he did indicate in a statement reported by the Boston Globe that his office would “continue to investigate and prosecute bulk cultivation and trafficking cases, and those who use the federal banking system illegally.” That does not sound like a major change in direction, although Lelling also refused to promise that any market participants would be “immune from federal prosecution.”

Second, the Ogden and Cole Memos were not the only layer of protection for the marijuana market – particularly for the medical dispensary system that is currently active in Massachusetts. An appropriations provision currently known as the Rohrabacher-Blumenauer Amendment has, since 2014, prevented the Justice Department from using federal dollars to interfere with state medical marijuana programs. Thus, although buying, selling, or possessing marijuana remains criminal under federal law, the general understanding is that it cannot be prosecuted if it is legal under state medical marijuana laws. Unfortunately, this protection has limits – it is only due to significant bipartisan work by some members of Congress that the measure has been included in each spending bill since 2014, and the current version is due to expire (along with many other funding provisions) on January 19 if it is not renewed. If it lapses, it is conceivable that Sessions could try to make examples of certain growers or dispensaries.

However, given the popularity of marijuana across party lines, the seeds of backlash against Sessions may be growing; recent reporting suggests that lawmakers might extend the Rohrabacher-Blumenauer protection to recreational as well as medicinal use in response to Sessions’ reactionary move. A Republican Senator from Colorado threatened to hold up Justice Department nominees unless Sessions retreats and leaves marijuana policy up to the states. As it stands, relatively few people face increased risk stemming from Sessions’ actions. And if pro-cannabis forces succeed in Congress, Sessions may be left huffing and puffing about a plant that he sees as a critical danger but which many voters, including those in Massachusetts, have given the green light.

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