Brach Eichler: Sessions’ Announcement to Rescind Cole Memo is More Symbolic Than Practical

mg magazine

News that Attorney General Jeff Sessions will rescind the Cole Memo, which de-funded prosecution budgets related to marijuana and thereby effectively created an accommodation for state governments to individually regulate cannabis use, comes at a pivotal moment in New Jersey as Governor-elect Phil Murphy is expected to endorse legislation that would legalize recreational cannabis here.

Charles X. Gormally and John D. Fanburg, attorneys at Brach Eichler, which recently issued a White Paper on New Jersey’s unique attributes relative to cannabis regulation, believe that Sessions’ announced intention of letting each state’s US Attorney determine prosecutorial policy, while fraught with legal contradictions, should not chill the introduction of a cannabis program in New Jersey.


“29 States have some form of regulated cannabis marketplace – there is not enough prosecutorial energy or funding to pursue the industry at this point, and Congress will never provide the resources, so at this point no Attorney General would be able to put those 29 genies back in their bottles.

“The residents of New Jersey deserve better from the chief federal law enforcement official.  Sessions’ move fails to address failed prohibition policies and makes the law a symbolic rather than a practical instrument.  However, the implications cannot be overlooked by anyone with jurisdictional authority in any branch of government.  Will US Attorneys in states with cannabis programs be discouraged from enforcement because they recognize that juries will never convict in states where their local governments permitted cannabis-related activity?  Will States accept a non-action commitment from current US Attorneys who are Presidential political appointees serving at the pleasure of the President when knowing their direct boss, the Attorney General, favors enforcement and can replace them at any time?  It’s a mess only the Trump Administration is capable of creating as it starts a new form of policy war that is not even blue state versus red state delineated.

“However, given fiscal pressures and political ideology, the Murphy Administration may elect to proceed with a measured and deliberative process to consider creating a regulated cannabis marketplace in New Jersey.   This will take time—-as it properly should— and allow time for the federal government to realize its abject failure of effective leadership on the issue.  Leadership should come from the federal government.  Sessions retreat to a time long-past is the polar opposite of leadership.  He also appears out of step with his own political party that defers to states’ prerogatives, promotes small federal government and the great laboratory of states’ rights.  Our Governor elect should keep his vow to New Jersey voters and press ahead.  We can lead by example, since Washington appears that it cannot.