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The Sessions War on Marijuana

Jonathan Blanks

Earlier this month, Attorney General Jeff Sessions rescinded
Obama-era Department of Justice guidance regarding state-legal
marijuana (or “cannabis”). The so-called Sessions Memo
overruled five other memos, most notably the “Cole
Memo” that de-prioritized enforcement of the federal
prohibition against marijuana in states that have legalized
cultivation and distribution recreationally. None of the memos have
the force of law—that is, they neither prohibited
prosecutions nor required U.S. Attorneys to change their
decision-making in states that have legalized marijuana
distribution or consumption. The Sessions Memo does, however,
represent a change in priority and encourages the affected U.S.
Attorneys to bring forward prosecutions that had been discouraged
by the five memos that showed deference to state laws. So although
the Sessions Memo did not actually alter any law, state-legal
marijuana merchants and distributors face a greater chance of
prosecution with the new federal position on legal weed.

The change in federal policy likely stems mostly from
Sessions’s longstanding personal disdain for marijuana,
rather than from either the White House or Congressional
Republicans. On the campaign trail, candidate Trump voiced strong
support for leaving cannabis policy liberalization to the states.
And while Congress has been resistant to making bold moves in
federal marijuana policy, the Republican-controlled House has
defunded prosecutions of state-legal medical marijuana
distribution, effectively prohibiting such prosecutions (without
actually legalizing medical marijuana), since 2014.

This de facto ban on state-legal medical prosecutions
was made possible by the Rohrabacher-Blumenauer Amendment,
initially known as Rohrabacher-Farr when it was adopted in 2014,
which is a rider to the yearly appropriations bill. Because it is
not a stand-alone law, it has to be amended to every budget
appropriation. The current appropriation expires February 8, and
there is no guarantee that it will be attached to the final budget
for this year. Given the clear position of the AG and the partisan
wrangling over this year’s budget that has already led to a
government shutdown, the future of the popular amendment is
uncertain.

If the amendment is indeed not renewed in the forthcoming budget
deal, the Sessions Memo could have a much broader effect. Only
eight states have legalized and taxed cannabis for recreational
purposes, while another 21 other states have medical marijuana
regimes. While medical marijuana patients will not be targeted by
the DOJ, they may put at risk of losing access to their
medication.

Medical cannabis is used to treat a variety of ailments,
including chronic pain, chemotherapy-induced appetite suppression,
and epileptic seizures. There is statistical
evidence, though not conclusive, that access to marijuana may have
an effect on opioid mortality as well. A study published in 2014 in
the Journal of American Medicine noted that in states
which gave residents legal access to cannabis had nearly 25 percent
fewer opioid deaths than states retaining prohibition regimes.
Whether marijuana explains none, some, or a great deal of that
difference, increasing any likelihood of patients moving to opioids
if their cannabis is taken away should be unthinkable during this
opioid crisis. If the Trump Administration were sincere about their
desire to end the crisis, they would take a closer look at cannabis
policy.

Despite the many problems that may come from the Sessions Memo,
the overall impact is not likely to be as widespread as some may
fear. The federal government simply does not have the resources to
stop the commerce of marijuana everywhere it is legal. U.S.
Attorneys may, if they choose, disrupt legal cannabis markets by
sending cease and desist letters to operators and their landlords
in the relevant districts, threatening legal action, and sending a
chilling effect to others. Raids on businesses are also possible
and would likewise encourage other businesses to close-up shop.
These consequences would be very serious for the proprietors and
employees of these businesses.

However, legal consumers will not face significant legal threat
from the DOJ, as the federal government has always left
street-level enforcement to state and local officials. Moreover, it
is unclear how many U.S. Attorneys are truly eager to divert
resources to cannabis prosecutions rather than focusing on crimes
such as fraud, interstate gang enforcement, domestic terrorism, and
other urgent matters of federal interest.

Still, the risk is not zero. Federal forfeiture law may
incentivize U.S. Attorneys to go after cannabis dispensaries
because they are often cash-only businesses—as banks have
been reluctant to do business with many of them, and will be even
less inclined to do so after the Sessions Memo—making
interdiction profitable for the government. State legality is not a
defense in federal court, so a federal indictment is virtually a
guarantee of a conviction and may lead to prison. It is a cruel
irony, however, that demonstrating compliance with state cannabis
laws may be used against business owners to convict them of federal
crimes.

The incredibly wide prosecutorial discretion of U.S. Attorneys
may be a saving grace for business owners in some federal
districts, and may be a curse for others. If the ambitions of those
attorneys include state-wide office, as former U.S. Attorneys have
become senators and governors, they may look past this particular
whim of General Sessions so as to not upset their future
constituencies. The other side of that coin, of course, is showing
deference to the politics and politicians of the moment. Thus, the
nation’s cannabis merchants and dispensaries must wait to see
what happens next.

Jonathan
Blanks
is a research associate at the Cato Institute’s Project
on Criminal Justice and writer-in-residence at Harvard University’s
Fair Punishment Project.