Legal Cannabis States Pushing Back Against Sessions’ Warning Letters

Legal Cannabis States Pushing Back Against Sessions’ Warning Letters

Legal Cannabis States Pushing Back Against Sessions’ Warning Letters

Legal Cannabis States Pushing Back Against Sessions’ Warning Letters

Legal Cannabis States Pushing Back Against Sessions’ Warning Letters

Author: Daniel T. McKillop|August 30, 2017

Attorney General Jeff Sessions does not support federal or state-level efforts to legalize marijuana. However, up to this point, it has been unclear what he plans to do about it.

[caption id="attachment_21658" align="aligncenter" width="550"] Photo courtesy of Esteban Lopez ([/caption]

In recent letters to the governors of several states that have legalized marijuana, 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.

DOJ Policy Under Cole Memo

In 2013, U.S. Department of Justice (DOJ) issued guidance to federal prosecutors stating that the agency would not challenge state laws authorizing small amounts of marijuana so long as robust controls and procedures are in place. United States Attorneys by Deputy Attorney General James M. Cole authored the memorandum that outlined the Justice Department’s marijuana enforcement position, which is why it is now commonly referred to simply as the “Cole Memo.”

The Cole Memo makes it clear that the DOJ will defer its right to challenge local marijuana laws so long as states implement strong regulatory systems. “These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding,” Cole explained. State and local governments must also allocate "the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities."

The Cole Memo also identified eight enforcement areas that federal prosecutors should prioritize. They included preventing distribution of cannabis to minors; preventing cannabis revenue from funding criminal enterprises, gangs or cartels; preventing cannabis from moving out of states where it is legal; preventing use of state-legal cannabis sales as a cover for illegal activity; and preventing drugged driving or exacerbation of other adverse public health consequences associated with cannabis use. 

AG Session’s Warning Letters 

In April, 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…Overhauling the Cole Memo is sure to produce unintended and harmful consequences...The Cole Memo and [the related Financial Crimes Enforcement Network (FinCEN)] guidance strike a reasonable balance between allowing the states to enact reasonable regulations and the federal government’s interest in controlling some of the collateral consequences of legalization.”

In his response letters to the governors of these states, Sessions reaffirmed the supremacy of federal drug laws. “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a crime,” Sessions emphasized. “The [Justice] Department remains committed to enforcing the Controlled Substances Act in a manner that efficiently applies our resources to address the most significant threats to public health and safety.”

In each letter, Sessions also indicated that he had serious concerns about the state’s ability to comply with the Cole Memo, attaching state impact reports that purportedly raise “serious questions about the efficacy of marijuana ‘regulatory structures’ in your state.” The concerns included an uptick in police seizures of illegal marijuana, increased youth use, and rising marijuana-related traffic fatalities. In his letter to Oregon Gov. Kate Brown, Sessions also highlighted the state’s failure adequately curb the black market.

Sessions also emphasized that Cole Memo permits “investigation or prosecution” of the legal cannabis industry, even when it complies with the DOJ’s prior guidanceIn several letters, he asked the governors to demonstrate that “all marijuana activity is compliant with state marijuana laws.”

Legal Cannabis States & Others Respond to Sessions' Letters

Since Sessions’ letters have been made public, many of the facts used to support his allegations about states’ noncompliance with the Cole Memo have been debunked as either outdated or inaccurate. In addition, the states have supplied their own evidence of efforts that they are taking to address the legitimate concerns, many of which they view as minor:

  • In an August 22 letter to Sessions, Oregon Governor Kate Brown wrote: "Despite the concerns surrounding legalization of marijuana, there can be no denying that Oregon has benefitted from this industry. Oregon has already realized $60.2 million in revenue and created over 16,000 jobs for Oregonians. Tax revenue from the marijuana industry is used to fund schools, to provide mental health and drug treatment and to assist both state and local law enforcement. This does not even take into account cost savings to the criminal justice system… [A] dismantling of the Cole Memorandum would have the opposite effect, driving existing lawful product into the unregulated black market and funding criminal enterprise."  Governor Brown’s office later stated to the press that a draft State Police report regarding Oregon’s legal marijuana program that was cited by Sessions in his letter to her demonstrated a "clear bias" as well as a "blatant disregard of any professional research standards," and added "[b]y using incomplete data, inaccurate research and unreliable sources, the flawed document drew unsubstantiated conclusions about cannabis legalization in Oregon to serve the author's personal agenda."
  • Alaska Governor Bill Walker and Attorney General Jahna Lindemuth delivered responses to Sessions on August 1 and August 14, saying that "the exercise of traditional police powers is an area where primary enforcement should be left to the individual states" and that the outdated data the federal attorney general cited "simply does not speak to the success or failure of the new regulatory framework,” and Lindemuth also asked Sessions to "maintain a policy substantially similar to the guidance articulated in the 2013 Cole Memorandum," calling it "a pragmatic approach that effectively creates space for states to be responsive to our residents while also protecting federal priorities."
  • Lawmakers from the state of Washington also responded to Sessions by pushing back against his claims about the state’s marijuana law.  In a letter dated August 23, they stated “[w]e believe your comments reflect a misunderstanding of what has happened in Washington State since recreational marijuana was legalized in 2012,” and that Federal government’s analysis of the state impact report cited by Sessions pertaining to Washington is “inconsistent with the available facts” and “fails to accurately describe the current functioning of Washington’s marijuana market, the nature of our regulatory system, and legalization's impact on the citizens of this state.”
  • Most recently, on August 24  Colorado Governor John Hickenlooper and Attorney General Cynthia Coffman delivered a letter to Sessions rejecting his assertions about the state’s marijuana program.  In their letter, Hickenlooper and Coffman state “[w]e take seriously our duty to create a robust marijuana regulatory and enforcement system. Colorado’s system has become a model for other states and nations," and citing surveys demonstrating "no statistically significant change in youth marijuana use rates following legalization… show[ing] Colorado’s youth use rates in line with the national average… [and] no increase in marijuana usage among adolescents in eighth, 10th, and 12th grades following legalization,” and they note that the most recent report on the issue “indicates that between 2013-14 and 2015-16 - the period in which adult-use marijuana businesses opened their doors – youth marijuana use declined by 12 percent."  Hickenlooper and Coffman also encourage Sessions to broaden access to financial services by observing that “our ability to make the marijuana industry safer and more accountable can be strengthened by improved access to the federal banking system for marijuana businesses."

Bottom Line

While the Attorney General may still attempt to crack down on legalized marijuana, his position is significantly weakened by the fact that he lacks strong evidence about its ill effects. Earlier this year, Sessions convened a Task Force on Crime Reduction and Public Safety to address marijuana legalization, among other issues. The task force, which included federal prosecutors and members of law enforcement, recommended that the federal government continue its “hands off” approach to enforcement.

It is unclear whether Sessions’ letters reflect an actual shift in DOJ policy or simply amount to political posturing.  In many respects, it appears that Sessions is advocating tougher enforcement of the Cole Memo, rather than seeking to replace it. Accordingly, states are continuing to press forward with legalization efforts and the cannabis industry appears to be taking a “business as usual” approach.  Nevertheless, members of the legal cannabis industry and those who intend to participate need to stay well apprised of the Federal government’s actions in this area.

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.

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About Author Daniel T. McKillop

Daniel T. McKillop

Dan McKillop has more than fifteen years of experience representing corporate and individual clients in complex environmental litigation and regulatory proceedings before state and federal courts and environmental agencies arising under numerous state and federal statutes.

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