The headlines these days sure make it sound like that is the case, but a closer look at what Attorney General Jeff Sessions actually did last week would suggest that the new policy’s words do not substantively differ from those of the old one. For today’s Throwback Thursday, let’s talk a look at how tensions have gotten so high over the most recent marijuana directive coming out of Washington D.C.
The Obama Administration
Prior to looking at Sessions’ recent actions it is worth noting the context that was established by President Obama’s administration.
On August 29th, 2013, Deputy Attorney General James Cole sent out a memorandum from the Department of Justice (DOJ) which was addressed to all United States attorneys under the subject heading “Guidance Regarding Marijuana Enforcement.” This document is now commonly known as the Cole Memo.
The Cole Memo and the multiple other guidance documents that preceded it under Obama’s administration were noteworthy, because they established a stated policy on what federal prosecutors should do when they came across an ever-increasing legal dilemma: federal law passed by Congress (such as the Controlled Substances Act [CSA]) has “determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime,” however more and more state laws are enabling the use and distribution of marijuana to varying degrees.
Thanks to the Supremacy Clause in the Constitution, such dilemmas are often not dilemmas at all, since federal law takes priority over contradicting state law. However, given the United State’s history with what has often been referred to as the Drug War, the Obama administration sought to ease the enforcement of what it believed to be heavy-handed drug laws to minimize federal expenses and optimize the judicial branch’s limited time and resources.
Hence, the Cole Memo.
What Does The Cole Memo Actually Say?
Unlike what many of the political pundits have been saying, the text of the Cole Memo did not legalize marijuana at the federal level. In fact, this guidance document outwardly stated that the “Department of Justice is committed to enforcement of the CSA consistent with” the determinations about marijuana that are quoted above.
What made the Cole Memo a defining policy initiative of the Obama administration is that it called upon federal prosecutors to utilize what is often called prosecutorial discretion when faced with a case involving marijuana in a state that permitted the marijuana-related conduct that was in dispute.
Under the Cole Memo’s directives, preventing the distribution of marijuana to minors, preventing “the diversion of marijuana from states where it is legal” under their own law – in some form – to other states, preventing “drugged driving,” and preventing “marijuana possession or use on federal property” were all still priorities of the DOJ on paper.
Outside of those priorities, and the several others that were listed in the memo, Cole wrote that the federal government would “on a case-by-case basis” appropriately rely on the states and their local enforcement to handle marijuana related conduct through strict and vigilant enforcement of their own narcotics laws. For example, pages 3-4 of the memo state the following:
The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice. Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities. (emphasis added)
In short, critics of this document felt that it was an abuse of prosecutorial discretion, and supporters felt that it fell in line with the traditional prosecutorial relationship between the state and federal government on such matters. Either way, the Cole Memo itself did not federally legalize marijuana; even its closing paragraph states that “neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.” (emphasis added)
So what exactly did Sessions do?
On January 4th, 2018, Attorney General Jeff Sessions released his own memorandum from the DOJ which was addressed to all United States attorneys under the subject heading “Marijuana Enforcement.”
In this new memo, Sessions echoes Cole’s statements regarding the federal laws that are still on the books and therefore in need of enforcement by the DOJ: “[The Controlled Substances Act] reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”
In short, this memo was a much less detailed one page version of the Cole Memo. It lacks Cole’s lengthy discussion of how discretion should be applied to states, but it does state that federal prosecutors ought to use discretion in their enforcement of federal marijuana-related laws:
In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions … 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.
What has raised some peoples concerns is that Session’s memo calls for the previous guidance documents sent out during Obama’s presidency to be immediately rescinded, and, viewing Sessions as a proponent of reigniting the federal war on drugs, these individuals fear that this memorandum is the first step toward targeting states that have legalized marijuana.
It is worth pointing out that Sessions’ new guidance document is already having local effects, as the US attorney for Massachusetts just recently stated “that he would not rule out criminal prosecutions of participants in the state-regulated marijuana business,” according to the Boston Globe. Of course, such prosecutions could have taken place under the Cole Memo as well.
However, while concerns regarding a renewed war on drugs may currently to some people be justified, channeling those concerns at Jeff Sessions is not.
It is the job of the attorney general and the DOJ as a whole to play by the rules that Congress creates. As seen in the text of the Cole Memo, federal laws need to be enforced regardless of where a certain presidential administration falls on the political spectrum.
If people have a problem with how the federal government is dealing with its marijuana laws, our constitutional system is designed to have them take their grievances to the branch that makes them, not the one that enforces them.
Throwback Thursday posts are intended to show how a specific legal issue has changed over time. If you have any further questions, please contact me through the tab above.