Search form

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The memorandum rescinded, effective immediately, guidance set during the Obama Administration, including memoranda written by then-U.S. Deputy Attorney General James M. Cole, that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 material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm with more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries. Having built its reputation on providing premier workplace law representation to management, the firm has grown to include leading practices in the areas of government relations, healthcare and sports law. For more information, visit www.jacksonlewis.com.

See AllRelated Articles You May Like

April 17, 2019

Kentucky Adopts Pregnant Workers Act

April 17, 2019

Beginning June 27, 2019, Kentucky employers must provide reasonable accommodations to employees who are limited due to pregnancy, childbirth, and related medical conditions, unless it would impose an undue hardship on the employer to do so. The Kentucky Pregnant Workers Act amends the Kentucky Civil Rights Act (KCRA) and applies to... Read More

April 12, 2019

New York City Employers May Be Barred from Testing Job Applicants for Marijuana Use

April 12, 2019

The New York City Council has passed a prohibition on New York City employers requiring prospective employees to submit to testing for the presence of any tetrahydrocannabinols (THC), the active ingredient in marijuana. If Intro 1445-A becomes law, it will be the first of its kind in the United States. Mayor Bill de Blasio is expected... Read More

April 4, 2019

New York Employees Get Up To Three Hours of Paid Time Off to Vote

April 4, 2019

A revision to New York’s election law gives workers in the state up to three hours of paid time off to vote, Governor Andrew Cuomo highlighted in an announcement released on April 1, 2019, about New York’s enacted budget for fiscal year 2020. Effective immediately, the New York Election Law § 3-110 reads as follows: A registered... Read More