The election of Donald Trump as President of the United States may lead to a significant change in the enforcement of the Controlled Substance Act (CSA) with respect to both medical and recreational uses of marijuana. Since 2013, the federal government’s stance on enforcement of the CSA with respect to marijuana has generally been to allow states leeway to regulate medical and recreational use of marijuana. The federal government has limited prosecution to address certain enumerated enforcement priorities. However, the incoming Trump administration has signaled that it may take a very different approach to marijuana enforcement.To date, almost thirty states have legalized either medical or recreational uses of marijuana, but it remains illegal under federal law as a Schedule I controlled substance. Violation of the CSA by manufacturing, distributing, or possessing with the intent to distribute 100 kilograms or more of marijuana carries a mandatory minimum sentence of five years imprisonment. This prohibition takes precedence over any state law legalizing marijuana due to the Supremacy Clause of the U.S. Constitution.
The so-called “Cole Memorandum,” issued by Deputy Attorney General James M. Cole on August 29, 2013, represents the key guidance from the Department of Justice (DOJ) on marijuana prosecution.1 The Memorandum lays out the enforcement priorities for federal prosecutors, which include preventing the sale of marijuana to minors, preventing the growing of marijuana on public lands, preventing the transfer of marijuana from a state where it is legal to a state where it is not, preventing the enrichment of drug cartels from the sale of marijuana, and preventing violence. The Memorandum states that historically, the federal government has relied on state and local law enforcement agencies to address marijuana activities through their own narcotics laws outside of the targeted federal priority areas. The Memorandum encourages strong deference to state law where a state regulatory system exists with respect to marijuana.It is advisable, however, to keep in mind that the Cole Memorandum is merely guidance and lacks the force of law. The Memorandum concludes with an important caveat in this regard: neither the DOJ’s guidance nor any state law or regulation provides a legal defense to a violation of federal law, including a violation of the CSA. Any threat to federal interests is at risk of prosecution, with conduct falling within the specific priorities carrying the highest risk of prosecution. This principle has been upheld by federal courts, i.e. that the federal government has the right to prosecute any violations of the CSA regardless of the Cole Memorandum and regardless of the state in which the crime occurs.
Federal courts and those indicted for federal marijuana violations have criticized the Executive Branch’s policy of inconsistently prosecuting federal marijuana laws nationwide. Allowing individuals in states that have chosen to regulate marijuana to escape prosecution at the expense of individuals in states that have not legalized marijuana, they argue, causes a disparate impact on users and distributors. Violations of federal marijuana laws committed in the almost thirty states that have legalized marijuana for medical use have generally escaped prosecution, at least since issuance of the Cole Memorandum in 2013. In the four states which have legalized recreational marijuana and currently have regulatory schemes in place, there were only three reported prosecutions2 for violation of the federal prohibition against marijuana since the Cole Memorandum.As United States attorney general, Mr. Sessions has the ability to revoke the Cole Memorandum and replace it with a much broader set of enforcement priorities, which would likely resolve the issue of disparate impact amongst the states, but could pose a serious threat to the retail marijuana industry. If this happens, marijuana prosecution will likely increase and may extend to conduct which did not fall within one of the priorities listed in the Cole Memorandum and which predated the revocation. While the federal government certainly cannot prosecute all instances of marijuana use due to limited resources, and likely would be less inclined to interfere directly with limited personal use and possession and medical marijuana, its prosecution of business owners at a high level could have a wide-ranging chilling effect on the entire retail industry. Businesses otherwise planning to enter the market might shy away due to a fear of prosecution and state legislators might delay implementation of new marijuana laws on the grounds of futility and the likelihood of causing confusion among citizens.
1Two precursors to the Cole Memorandum were the memorandum issued by Deputy Attorney General Ogden in 2009, which acknowledged that some states had authorized medical use of marijuana and directed U.S. Attorneys to show prosecutorial discretion towards those states, and the 2011 memorandum by Cole affirming that guidance.
2These prosecutions were brought in the U.S. District Court for the Districts of Colorado, Oregon, and Washington.
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