Locke Lord QuickStudy: Stuck in the Middle with You: State Legalization of Marijuana Places Federal Prosecutors in an Awkward but Powerful Position

Locke Lord LLP
January 9, 2019
Marijuana is now legal for medical use in at least thirty states and for recreational use in ten. But it remains illegal for all types of use at the federal level. Accordingly, millions of U.S. citizens find themselves in the paradox of complying with state law while violating federal law. This unique situation has stressed the federal law enforcement community, and particularly the various U.S. Attorneys tasked with navigating these cross-tides. Recently, several U.S. Attorneys have staked out independent and differing positions on marijuana enforcement that suggest they may play an outsized role in determining the progression of the marijuana industry within their jurisdictions. It is critical for marijuana-related businesses (MRBs) to understand the position of their local U.S. Attorney and adapt accordingly. 

Since 2000, states have consistently moved towards legalization; the federal government has been less consistent. From 2001 to 2010, the federal government rigorously enforced the Controlled Substances Act, resulting in over 7 million marijuana-related arrests. In 2013, the Department of Justice relaxed its anti-marijuana efforts by issuing the Cole Memorandum, which instructed U.S. Attorneys to respect state laws concerning marijuana. The Cole Memorandum enumerated eight priorities for law enforcement to focus on, including preventing the distribution of marijuana to minors and ensuring that gangs and cartels were not involved in state-legal cannabis operations. Outside of those priorities, the Cole Memorandum instructed law enforcement to cease enforcement activities in states that had legalized the drug. In 2017, then-Attorney General Jeff Sessions rescinded the Cole Memorandum and reaffirmed marijuana’s status as an illegal drug. 

The renunciation of the Cole Memorandum presented a potential crisis for the marijuana industry. Between 2013 and 2017, the synergy between ongoing state legalization and federal non-interference resulted in billions of dollars of investment, infrastructure, and sales in the marijuana industry. That dramatic growth was at risk given what appeared to be an impending federal crackdown.

That crackdown has not materialized, however, and some of the credit must go to the local U.S. Attorneys in critical jurisdictions. As the chief prosecutors representing the federal government within state jurisdictions, U.S. Attorneys wield significant enforcement discretion. But they also face unique political pressures, to wit, whether to enforce the federal government’s continued prohibition on all marijuana use or to accept the will of the people in the states in which they operate. Thus far, the critical U.S. Attorneys appear to be siding with the people of their respective states. 

Since the renunciation of the Cole Memorandum, there has been no discernable uptick in legal actions against state-law compliant MRBs. And while several U.S. Attorneys have issued public statements that pay lip service to federal policy, those statements also at least implicitly suggest that these U.S. Attorneys intend to continue with the hands-off policy set forth in the Cole Memorandum. For instance:

  • The United States Attorney for Massachusetts, Andrew Lelling, stated that “the number one enforcement priority from my office is the opioid crisis…2,100 people in Massachusetts were killed by opioid overdoses last year, not marijuana overdoses. So that is where my resources are going right now.”
  • In Colorado, U.S. Attorney Bob Troyer released an official statement upon the rescission of the Cole Memorandum indicating that his office would not change its approach to marijuana prosecution, and would continue to focus on “identifying and prosecuting those who create the greatest safety threats to our communities around the state.”
  • In Oregon, U.S. Attorney Billy J. Williams issued a more concerning statement for the marijuana industry, noting a “significant overproduction of marijuana in Oregon” that supports an interstate black market. But Mr. Williams also indicated a willingness to work closely with state organizations to find practical and cooperative solutions—he has invited local and state government leaders as well as industry participants to discuss and identify solutions that might best serve interested parties.

The statements and actions of U.S. Attorneys in critical states (Massachusetts, Colorado, and Oregon all allow for recreational use) should be comforting for the marijuana industry, but not too comforting. U.S. Attorneys serve at the discretion of the President, and if the President and his Attorney General decide that they want to vigorously crack down on the marijuana industry, the U.S. Attorneys will likely either comply or be replaced. That makes the appointment of William Barr to be the next United States Attorney General of critical importance. Mr. Barr served as the Attorney General for President George H.W. Bush from 1991 to 1993. It may be concerning to MRBs that Mr. Barr’s prior term as Attorney General was during the height of President Bush’s “War on Drugs.” But he did not publicly profess any detailed views on marijuana-enforcement while in that position or since. As such, the marijuana industry will be paying close attention to the confirmation hearings set for early 2019 to see if Mr. Barr provides any indication of which way he is leaning regarding marijuana-enforcement.

In short, the marijuana industry did not face a significant crackdown despite the 2017 renunciation of the Cole Memorandum, in part because the U.S. Attorneys that would lead that crackdown have not shown particular enthusiasm. That provides the marijuana industry with a valuable, but not unbreachable, bulwark. MRBs should closely monitor the confirmation proceedings of Mr. Barr for signs as to whether he plans to continue the federal retrenchment on marijuana initiated by Mr. Sessions. And they should continue to closely monitor the statements and actions of their local U.S. Attorneys for any signs of changed priorities.