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U.S. Department of Justice Reverses Hands-Off Enforcement Policy on Marijuana

By Matthew F. Nieman and Kathryn J. Russo
  • January 5, 2018

Three days after retail sales of recreational marijuana became legal in California, U.S. Attorney General Jeff Sessions has announced a new marijuana enforcement policy that calls for rescinding the long-standing, lenient policy set by the Obama Administration.

In a one-page memorandum issued on January 4, 2018, Sessions, stressing that marijuana is an illegal and dangerous drug, directed all U.S. Attorneys to enforce the laws enacted by Congress and to follow “well-established principles” when pursuing prosecutions related to marijuana activities. These principles “require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

Cole Memorandum

The memorandum rescinded, effective immediately, guidance set during the Obama Administration, including memoranda written by then-U.S. Deputy Attorney General James M. Cole, that articulated a hands-off approach with regard to marijuana prosecutions.

The 2013 “Cole Memorandum” noted that while the Department of Justice (DOJ) was committed to the enforcement of the Controlled Substances Act (which makes marijuana illegal), it also was committed to using its limited investigative and prosecutorial resources to address only the most significant threats. At that time, DOJ’s enforcement priorities at that time included, among other things:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; and
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana.

Outside of those enforcement priorities, DOJ had expressed its willingness to rely on state and local governments that enacted marijuana laws to implement “strong and effective regulatory and enforcement systems that will address the threat that those state laws could pose to public safety, public health, and other law enforcement interests.”

Sessions Policy

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” said Attorney General Sessions. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

Uncertainty, For Now

It is not immediately clear how the new DOJ policy will be implemented, particularly as President Donald Trump has publicly supported medical marijuana in the past. Trump stated that marijuana legalization should be addressed by the states.

Currently, eight states and the District of Columbia have legalized recreational marijuana and 29 states and the District of Columbia have legalized medical marijuana.

Jackson Lewis attorneys will continue to monitor developments. Please contact a Jackson Lewis attorney if you have any questions.

©2018 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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