White Collar & Corporate Investigations Alert | January.08.2018
On January 4th, United States Attorney General Jeff Sessions issued a memo reversing federal marijuana enforcement policy, effective immediately. The decision moves the federal government away from its all but directed hands-off approach to marijuana enforcement, to an approach that returns full discretion to the prosecutors. Per DOJ's recent memo, it "gives prosecutors the tools to take on large-scale distributors and enforce federal law" in order to "disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."
This is a significant change of course from Obama-era guidance on marijuana enforcement. In August 2013, United States Deputy Attorney General James Cole released what came to be known as the "Cole Memo," a response to various states' enactments of legislation and regulations legalizing recreational and medical cannabis. The Cole Memo followed a series of other DOJ memos signaling a relaxing of marijuana enforcement, particularly with respect to states' medical marijuana laws. These memos, which were all rescinded by Attorney General Sessions, discouraged federal prosecutors in most cases from bringing charges in instances where marijuana activities complied with state laws and regulations and did not conflict with certain other DOJ enforcement priorities, such as preventing the distribution of marijuana to minors, preventing the diversion of marijuana from states where it is legal to other states, and several other specifically listed aggravating factors (otherwise known as the "Cole Factors").
While many saw the Cole Memo as the beginning of the end of marijuana prohibition, the Memo still expressly acknowledged the illegality of marijuana under federal law, and reserved the Department's right to challenge states' regulatory structures around medical and recreational cannabis, in addition to continuing to bring individual enforcement actions. Put simply, the Cole Memo did not mean it was suddenly "okay" to engage in marijuana-related commercial or private activities when it previously was "not okay." Rather, it expressed a re-prioritization of the Department's prosecutorial goals and a reallocation of the Department's enforcement resources.
With Attorney General Sessions' decision yesterday, the Department has essentially removed the implicit acknowledgement that marijuana is different from other controlled substances prohibited by federal law. Indeed, Attorney General Sessions reiterated that Congress has determined marijuana to be a "dangerous drug" and marijuana activity a "serious crime." Attorney General Session's statement highlights that it is up to Congress to ultimately resolve the conflict between federal law and the laws of more than half the states in the United States that have legalized marijuana in some fashion.
Notably, the Department of Justice has not, as of yet, replaced the Cole Memo with a specific directive for prosecutors to go in the other direction, such as specifically directing prosecutors to pursue marijuana-related cases. Instead, Attorney General Sessions cited DOJ standard policy to "follow the well-established principles that govern all federal prosecutions," requiring federal prosecutors deciding which cases to prosecute to "weigh all relevant considerations of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community." Practically, as prosecutors consider whether to pursue marijuana cases, they will likely evaluate the likelihood of success in bringing such charges in a particular district.
For example, prosecutors in conservative districts where juries may not be sympathetic to the state legalization of marijuana may be more likely to pursue cases than prosecutors in more liberal districts. The U.S. Attorney's Office in Colorado, for example, released a statement on Thursday noting that it had no plans to change marijuana prosecutions in the state that first legalized recreational marijuana.
Our white collar practice has many former federal prosecutors who are well suited to assist with any questions or other inquires related to this topic.
The January 4, 2018 DOJ Memorandum on Marijuana Enforcement can be found here.