Attorney General Jeff Sessions has made it very clear that he does not approve of the growing cannabis industry. Until last week, it was unclear what he planned to do about it.

On January 4, 2018, Sessions rescinded the Cole Memo. In doing so, the Department of Justice (DOJ) reverted away from the lenient federal enforcement policy set forth under President Obama and re-established prior policy that instructs federal prosecutors in cannabis-legal states to use certain criteria and their discretion in deciding how aggressively to enforce federal law prohibiting cannabis operations.

Cannabis Enforcement Under the Cole Memo

The “Cole Memo” is a guidance document drafted by former US Attorney General James M. Cole in 2013 and issued to all federal prosecutors. The Cole Memo stated that the DOJ would not challenge state-legal cannabis operations so long as the states at issue maintain robust controls regarding their respective markets and did not allow cannabis operations to undermine federal enforcement priorities pertaining to cannabis. 

Since assuming the role of Attorney General, Sessions has expressed concerns about the decriminalization of recreational marijuana, even in states where it is already legal. In April 2017, the governors of Colorado, Oregon, Alaska, and Washington wrote a letter to the DOJ and Treasury Department asking that “the Trump administration to engage with us before embarking on any changes to regulatory and enforcement systems…” In response, the Attorney General emphasized that his agency still retains the power to enforce the federal ban on marijuana. He also detailed what he characterized as serious flaws in the states’ compliance with existing guidance from the Department of Justice regarding state-level legalization. However, after Sessions’ letters were made public, many of the facts used to support his allegations about states’ alleged noncompliance with the Cole Memo were debunked as either outdated or inaccurate.

New DOJ Marijuana Enforcement Directive

In response, Sessions has elected to do away with the Cole Memo altogether. “Given the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately,” Sessions wrote in a one-page memo. The memo directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow the well-established principles when pursuing prosecutions related to marijuana activities. According to the DOJ, the “return to the rule of law” returns discretion to federal prosecutors to deploy DOJ resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs. 

“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," Sessions said in a press statement. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys 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 across our country."

Will Congress Respond?

The cannabis industry generated $6.7 billion in revenue in 2016, and employs as many as 230,000 workers. Accordingly, the rescission of the Cole Memo has resulted in anger, confusion, and uncertainty for Americans who rely on the cannabis industry, including small business owners, workers, and marijuana users.

Sessions’ stance is also at odds with the will of voters in several states, as well as public opinion. Eight states and the District of Columbia have legalized marijuana for recreational use. In addition, the latest poll numbers think cannabis should be legalized across the country.

Given the growing support for cannabis legalization, Congress may finally be forced to act. Its options include rescheduling marijuana under the Controlled Substances Act, decriminalizing marijuana on the federal level in favor of state regulation, and banning the DOJ from spending money prosecuting those who comply with state-level recreational marijuana laws. 

Impact on New Jersey Cannabis Industry

The interim U.S. Attorney for New Jersey is Craig Carpenito. Carpenito is a white-collar defense and securities lawyer and partner in the firm of Alston & Bird and represented Gov. Christie in matters related to the "Bridgegate" lane-closure scandal. 

Carpenito will serve as U.S. Attorney on an interim basis for 120 days, or until President Trump appoints and the U.S. Senate confirms a permanent replacement for Paul Fishman, who resigned in March at Sessions' request along with 45 other Obama-appointed U.S. Attorneys.  Carpenito has made no public statement regarding enforcement of federal marijuana law, but the Murphy administration does not regard Sessions’ action as a threat to its adult-use legalization plans or to our medical cannabis program. “Gov.-elect Murphy believes strongly in New Jersey’s right to chart its own course on legalizing marijuana, which will allow for law enforcement to focus their time and resources on prosecuting violent crimes rather than non-violent drug offenders,” said Daniel Bryan, Murphy's spokesman.

In short, though the rescission of the Cole Memo is a significant development with the respect to the cannabis industry, it is not a moratorium, and New Jersey will likely move forward with its current legalization and expansion plans.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.