When the United States Senate anointed one of its own—Alabama Republican Jeff Sessions—attorney general in February 2017, the legal cannabis industry barely batted an eye. Although Sessions is an outspoken opponent of legalization (he infamously said “good people don’t smoke marijuana”), the industry rested secure in the belief the so-called Cole Memo would protect businesses and consumers. Written in 2013 by then-Deputy U.S. Attorney General James M. Cole, the memorandum directed federal prosecutors to leave enforcement of cannabis laws to local authorities in states that had legalized medical sale and use. Cole set out a few exceptions, including distribution to minors, diversion of funds to criminal organizations, and drug-related violence, but the primary message was “hands off.”
In May 2017, just three months after his swearing-in as the nation’s top cop, Sessions personally asked congressional leaders to rescind the 2014 Rohrabacher-Farr (now known as Rohrabacher-Blumenauer) amendment specifically so the Department of Justice could prosecute sellers and users of medical cannabis. The amendment, attached to an omnibus spending bill, bars the DOJ from using federal funds to prevent states “from implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Congress rebuffed the attorney general’s request, so Sessions did what any red-blooded ultra-conservative politician would do: He doubled down, invoking the power of his office in the service of a personal vendetta. Perhaps triggered by California rolling out adult use January 1, 2018, Sessions rescinded the Cole Memo on January 4. In what has come to be known as the Sessions Memo, the attorney general opined that by passing the Controlled Substances Act of 1970, Congress determined “marijuana is a dangerous drug, and marijuana activity is a serious crime.
“In deciding which marijuana activities to prosecute…prosecutors should follow the well-established principles that govern all federal prosecutions,” the memo continued. “These principles require federal prosecutors…to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General…” [Emphasis mg’s.]
Appointing seventeen interim U.S. attorneys the day before he dropped the memo lent additional gravitas to Sessions’s edict. So, the cannabis industry began to wonder… After as long as two decades of adhering to rigorous state regulations, paying taxes and licensing fees, and proving they could be good citizens, would cannabis businesses face federal prosecution again? Would law enforcement, under the direction of an anti-legalization zealot, pursue criminal charges against people earnestly obeying state laws they had every right to believe were fair, just, and voter-approved?
Were the feds coming to take our pot?
For the Defense
In the immediate aftermath of the Sessions Memo’s release, the cannabis community reacted with varying degrees of nervousness and rancor. The initial shock dissipated quickly as elected officials in legal states rushed to assure their constituents the feds would not be allowed to simply waltz in and shut down an industry that annually contributes hundreds of millions of dollars to state tax coffers. Many politicians reacted with outrage, like U.S. Representative Diana DeGette (D-Colo.), who said, “This step could drag us back to the days of raids on legal dispensaries and people living in fear of being jailed for using the medical marijuana they need. It could create a chilling effect on an industry that employs thousands of people in Colorado alone, where sales now top $1 billion per year. The federal government shouldn’t take punitive steps that undermine the will of our citizens expressed at the state level.”
Oregon Senator Earl Blumenauer, a Democrat and co-sponsor of the Rohrabacher-Blumenauer amendment, phrased his objection using somewhat less polite terms. “Going against the majority of Americans—including a majority of Republican voters—who want the federal government to stay out of the way is perhaps one of the stupidest decisions the attorney general has made,” he said. “One wonders if [President Donald] Trump was consulted—it is Jeff Sessions, after all—because this would violate [Trump’s] campaign promise not to interfere with state marijuana laws. It’s time for anyone who cares about this issue to mobilize and push back strongly against this decision.”
Even members of Sessions’s own political party reacted with fury. Senator Rand Paul (R-Ky.) said he continues to believe cannabis legalization is “a states’ rights issue.” Colorado Republican Senator Cory Gardner, no fan of legalization himself, said he will uphold the will of voters and threatened to put a hold on hearings for nominations to fill DOJ vacancies until Sessions reverses his decision. Representative Dana Rohrabacher (R-Calif.), said Sessions’s memo likely would precipitate unwelcome consequences. “By attacking the will of the American people, who overwhelmingly favor marijuana legalization, Jeff Sessions has shown a preference for allowing all commerce in marijuana to take place in the black market, which will inevitably bring the spike in violence he mistakenly attributes to marijuana itself,” Rohrabacher said.
Regardless how they phrased their responses, many—perhaps most—elected officials agreed the attorney general is tilting at windmills. No matter how eager he may be to pick the low-hanging fruit of a once-underground culture that’s now out in the open, he faces a Sisyphean task: According to a late-2017 Gallup poll, 64 percent of Americans, regardless of political affiliation, support marijuana legalization.
Congress has taken note. Last year, a bipartisan group of federal legislators launched the Congressional Cannabis Caucus, a group dedicated to protecting and promoting the legal weed community. In addition, at least twenty-five cannabis-related bills had been introduced by mid-January.
For the Prosecution
Whatever politicians, businesses, and consumers may believe about cannabis’s federal status as an illicit drug, Deputy U.S. Attorney General Rod Rosenstein made clear the DOJ’s position in a January speech in Florida. “The facts are that the United States Congress has decreed marijuana is unlawful throughout these United States of America, every one of these fifty states,” he told the Forum Club in Palm Beach. “And no state or local government has the authority to overrule federal law… The thing the attorney general’s done—and while it’s consistent with his view and mine that it’s bad as a moral matter, bad as a practical matter to use marijuana—the issue here is that it’s simply illegal to do it. What the attorney general has done is simply to say the Department of Justice has full discretion to enforce the law. It doesn’t say which cases we’re going to prosecute. It says we’re going to treat marijuana just like every other substance…
“The policy doesn’t dictate that our U.S. attorneys are going to go out and prosecute people for using marijuana,” he continued. “…[O]ur U.S. attorneys are free to prosecute violations of the law involving marijuana just like all other substances. And what they’re going to do is what they do in all cases: evaluate the facts and circumstances and decide whether a particular case warrants prosecution.”
So, who are these prosecutors, and where do they stand on enforcing federal cannabis law? There are forty-nine appointed, acting, or interim U.S. attorneys in the thirty legal states and the District of Columbia. Some of them have made no public statement since receiving the Sessions Memo, and most of the ones who’ve spoken on the record appear to have been intentionally vague. Colorado’s U.S. attorney said his office will “focus on the greatest safety threats,” as it does with every other crime. (It’s worth noting the potential for robbery of cash-only businesses could be considered a public safety threat.) The Massachusetts U.S. attorney said he could not “provide assurances that certain categories of participants in the state-level cannabis trade will be immune from federal prosecution.”
Here’s what all of them—acting, interim, and permanent—have indicated.
Bryan D. Schroder: “The highest priorities of the U.S. Attorney’s Office in Alaska are consistent with those of the Justice Department nationally: combating violent crime, including as it stems from the scourge of drug trafficking… We will continue to focus on cases that meet those priorities.”
J. Cody Hiland, Eastern District: “We are a nation of laws and not men. I took an oath to uphold the Constitution and the laws of the United States, and that is what this office has done and will continue to do throughout my term as U.S. Attorney. To that end, we will continue to exercise our prosecutorial discretion and evaluate criminal cases on an individual basis as it relates to the law and the facts as presented.”
Duane A. “Dak” Kees, Western District: Kees took office January 5. At press time, he had issued no public statement regarding marijuana enforcement.
Elizabeth A. Strange (acting): Strange has issued no public statement about enforcement.
Nicola T. Hanna, Central District (Sessions interim appointee): Hanna has issued no public statement.
McGregor W. Scott, Eastern District: Scott has issued no public statement, but it’s worth noting that when he served as the USA in the same district as a George W. Bush appointee, he was known as a hardcore drug warrior. Scott’s office prosecuted a number of legal dispensary operators, in one case obtaining twenty- and twenty-two-year sentences against two Modesto dispensary owners. Then-President Barack Obama granted one of the men clemency in 2017.
Alex G. Tse, Northern District (acting): Tse has issued no public statement.
Adam L. Braverman, Southern District: “The cultivation, distribution, and possession of marijuana has long been and remains a violation of federal law. We will continue to utilize long-established prosecutorial priorities to carry out our mission to combat violent crime, disrupt and dismantle transnational criminal organizations, and stem the rising tide of the drug crisis.”
Robert C. Troyer: “The United States Attorney’s Office in Colorado…[focuses] 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.”
John H. Durham: “Federal laws are properly enacted, modified, and repealed by Congress, not the Department of Justice. The U.S. Attorney’s Office in Connecticut will continue to prosecute violations of federal law consistent with priorities established by the Justice Department and our office.”
David Weiss (acting): “The U.S. Attorney’s Office for the District of Delaware will utilize the long-established prosecutorial principles to carry out the shared commitment with the Justice Department to combat violent crime and the scourge of drug offenses plaguing our community.”
DISTRICT OF COLUMBIA
Jessie K. Liu: “The U.S. Attorney’s Office for the District of Columbia is committed to reducing violent crime and dismantling criminal gangs and large-scale drug distribution networks that pose a threat to public safety. In accordance with the attorney general’s memo, we will utilize long-established principles of prosecutorial discretion in pursuing cases and fulfilling that commitment,” according to spokesman William Miller.
Maria Chapa Lopez, Middle District (Sessions interim appointee): Lopez has issued no public statement.
Christopher P. Canova, Northern District: Canova has issued no public statement.
Benjamin G. Greenberg, Southern District: Greenberg has issued no public statement.
Kenji M. Price (Sessions interim appointee): Price has issued no public statement.
John E. Childress, Central District: “For citizens of central Illinois, the Justice Department memo…on marijuana enforcement does not change long-established prosecutorial principles to enforce federal law. The U.S. Attorney’s Office will continue to work together with our law enforcement partners to promote the safety and interests of our local communities.”
John R. Lausch Jr., Northern District: Lausch has issued no public statement.
Donald S. Boyce Jr., Southern District: Boyce has issued no public statement.
Duane A. Evans, Eastern District (Sessions interim appointee): Evans has issued no public statement.
Corey R. Amundson, Middle District (acting): “Since our approach is consistent with the attorney general’s announcement, we do not anticipate a significant change in the federal enforcement of marijuana activities in this district.”
Alexander C. Van Hook, Western District (Sessions interim appointee): Van Hook has issued no public statement.
Halsey B. Frank: “As the chief federal law enforcement officer in this district, my job is to enforce federal law, not countermand it. While I have some discretion in how my office does so in any particular case…I do not have the authority to categorically declare that my office will not prosecute a class of crime or persons… With respect to the prosecution of drug offenses, this office has prioritized the prosecution of cases involving the trafficking of opiates, cocaine, crack, and similar hard drugs. We have also prosecuted large-scale marijuana distribution organizations and did so even while operating under the recently rescinded DOJ guidance. Prosecution of drug possession cases has not been a priority.”
Stephen Schenning (acting): Schenning has issued no public statement.
Andrew E. Lelling: “I cannot…provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution… This is a straightforward rule of law issue. Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana. As a law enforcement officer in the executive branch, it is my sworn responsibility to enforce that law… To do that, however, I must proceed on a case-by-case basis, assessing each matter according to those principles and deciding whether to use limited federal resources to pursue it… The kind of categorical relief sought by those engaged in state-level marijuana legalization efforts can only come from the legislative process.”
Matthew Schneider, Eastern District (Sessions interim appointee): Schneider told the Detroit News his office “will review marijuana cases in terms of where those cases fit within our priorities and our limited federal resources. In every criminal case, we will rely upon the Justice Department’s long-established principles of federal prosecution, as all U.S. attorneys have done since 1980.”
Andrew B. Birge, Western District: Birge has issued no public statement.
Gregory G. Brooker (Sessions interim appointee): Brooker has issued no public statement.
Kurt G. Alme: Alme said his office will focus “in particular on identifying and prosecuting those who create the greatest safety threats to our citizens and communities. Consistent with the attorney general’s latest guidance, we will continue to take this approach in all of our work with our law enforcement partners throughout Montana.”
John J. Farley (acting): “In making prosecution decisions, we will consider all applicable federal laws and will evaluate all relevant considerations, including the department’s law-enforcement priorities, the seriousness of the crime, the deterrent effect of the prosecution, and the impact of the particular crime on the community.” (Source: New Hampshire Union Leader.)
Craig Carpenito (Sessions interim appointee): Carpenito has issued no public statement.
James D. Tierney (acting): Tierney has issued no public statement.
Richard Donoghue, Eastern District (Sessions interim appointee): Donoghue has issued no public statement.
Grant C. Jaquith, Northern District (Sessions interim appointee): Jaquith has issued no public statement.
Geoffrey Berman, Southern District (Sessions interim appointee): Berman has issued no public statement.
James P. Kennedy, Western District: Kennedy has issued no public statement.
Dayle Elieson (Sessions interim appointee): Elieson has issued no public statement.
Christopher C. Myers: “I can’t speculate on what might happen down the road, because we don’t have any certainty as to how the state is going to set up and implement [the pending medical] program.” (Source: West Fargo Pioneer.)
Justin E. Herdman, Northern District: “We’re going to still continue to be in a position to prosecute those cases, and marijuana’s still illegal under federal law just like it was last week…” (Source: Cleveland.com.)
Benjamin C. Glassman, Southern District: “Congress made marijuana illegal under the Controlled Substances Act. That was true under Deputy Attorney General Cole’s 2013 memorandum on marijuana enforcement, and it’s just as true under (Sessions’s) memorandum today.”
Billy J. Williams: “We will continue working with our federal, state, local and tribal law enforcement partners to pursue shared public safety objectives, with an emphasis on stemming the overproduction of marijuana and the diversion of marijuana out of state, dismantling criminal organizations, and thwarting violent crime in our communities.” In an op-ed published January 12 in The Oregonian, Williams additionally noted, “I have significant concerns about the state’s current regulatory framework and the resources allocated to policing marijuana in Oregon.”
Louis D. Lappen, Eastern District: Lappen has issued no public statement.
David J. Freed, Middle District: “Having been involved as a state prosecutor in the drafting of [Pennsylvania’s medical cannabis] legislation, I believe there are sufficient safeguards in the law to ensure the products will be used as intended under the supervision of medical professionals. While I cannot state that there will never be an issue in this area meriting federal involvement, my office has no intention of disrupting Pennsylvania’s medical marijuana program or related financial transactions.”
Scott W. Brady, Western District: “This office will continue to deploy all prosecutorial tools at our disposal to protect the citizens of western Pennsylvania from those individuals and criminal organizations which traffic in all illegal controlled substances, including marijuana.”
Stephen G. Dambruch (Sessions interim appointee): Dambruch has issued no public statement.
Christina E. Nolan: “We’re going to use the principles we’ve long used in all drug cases to prioritize our finite resources.” (Source: Burlington Free Press.)
Annette L. Hayes, Western District: “[W]e have investigated and prosecuted, over many years, cases involving organized crime, violent and gun threats, and financial crimes related to marijuana. We will continue to do so to ensure—consistent with the most recent guidance from the department—that our enforcement efforts with our federal, state, local, and tribal partners focus on those who pose the greatest safety risk to the people and communities we serve.”
Joseph H. Harrington, Eastern District (Sessions’s interim appointee): “This United States Attorney’s Office will continue to ensure, consistent with the most recent guidance from the Department of Justice, that its enforcement efforts with our federal, state, local, and tribal law enforcement partners focus on those who pose the greatest safety risk to the communities in Eastern Washington, by disrupting criminal organizations, tackling the growing drug crisis, thwarting violent crime, and corralling white-collar fraudsters in this district.”
William J. Powell, Northern District: “West Virginia remains first in the nation in overdose deaths per capita. We are working hand in hand with our task forces, other law enforcement agencies, and county prosecutor partners to prosecute those who are delivering poison to our communities and committing violent crimes. The attorney general has entrusted me to deploy our resources and prioritize our work in a manner to best accomplish these goals. I will honor that trust by always doing what is best for this district.”
Michael B. Stuart, Southern District: While noting his office will pursue “vigorous and aggressive enforcement of federal law, especially in the area of drugs,” Stuart said “I will comply with all congressional mandates” and take “no extraordinary action” as long as dispensaries and other cannabis businesses operating under state law also operate “within the constraints and guidance” of the Rohrabacher-Blumenauer amendment. (Source: Source: Charleston Gazette-Mail.)