Role Reversal: AG Sessions Places a Cloud Over State Marijuana Laws Role Reversal: AG Sessions Places a Cloud Over State Marijuana Laws

Role Reversal: AG Sessions Places a Cloud Over State Marijuana Laws

In a reversal of existing federal policy, the Department of Justice (“DOJ”) announced today it was rescinding previous policy guidance issued by the Obama Administration and would no longer defer to state laws in the enforcement of marijuana policy. 
 
Pursuant to policy memos issued by former Deputy Attorney General James Cole in 2013 and 2014 (“the Cole Memos”), the DOJ has generally deferred to state laws on legal pot. Federal authorities were discouraged from prosecuting legal pot unless marijuana-related businesses (“MRBs”) violated certain key federal priorities. Examples include preventing the distribution of the drug to minors or diverting legal marijuana to jurisdictions where pot remained illegal.
 
Today however, U.S. Attorney General Jeff Sessions rescinded the prior policies discouraging prosecution of MRBs regulated under state law. Instead, federal prosecutors are instructed “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.” See www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement.   
 
As a result of this policy change, federal prosecutors are freer to take direct action against MRBs, marijuana consumers, and related businesses. Indeed, today’s guidance provides much greater discretion to local United States Attorney’s offices to determine the amount of federal resources that should be devoted to marijuana enforcement actions, including actions against legal pot, in their individual districts. 
 
This move is in line with the DOJ’s 2017 announcement instructing prosecutors to strictly adhere to federal Sentencing Guidelines and to charge the most serious offenses in every case, including those that carry lengthy, mandatory minimum sentences. See www.icemiller.com/ice-on-fire-insights/publications/shifting-priorities/. Because marijuana continues to be illegal under federal law, the DOJ is similarly encouraging strict adherence to the prohibition of marijuana sale and use, but leaving substantial discretion to local districts regarding the implementation and enforcement of the law. 
 
At this time, there is no indication the new policy will expose past marijuana-related activity to federal regulatory scrutiny so long as that past activity complied with then-existing federal guidance. However, the new policy, which is effective immediately, will impact federal regulatory guidance and compliance for the legal marijuana industry going forward.   
 
Additional details on this new policy are likely to emerge in the coming weeks. Members of Ice Miller’s marijuana licensing, advocacy, and compliance team are following the matter closely. If you have questions about how this policy revision impacts the legal rights and/or compliance obligations of your business, please contact Stephanie Courter, Mark Huddle, John Oberle, Alan Starkoff, Greg Gorospe or another member of Ice Miller’s team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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