On Thursday, marijuana-hating Attorney General Jeff Sessions invalidated a document that has served as the legal scaffolding for the state-level pushes to legalize recreational use of marijuana. There are, as Mark Joseph Stern writes in Slate, many reasons to believe that some kind of federal crackdown on marijuana could be in the works. But there are also plenty of reasons the legal marijuana industry no longer needs to fear a prohibitionist like Sessions.
Despite the initial surprise, the industry appeared to absorb the news with an appropriate sense of proportion. “This is not a sky-is-falling moment,” Kris Krane, president of 4Front, a company that operates medical cannabis businesses in four states, told me. “It may wind up being nothing.”
In his missive, Sessions rescinded the Cole memo, an August 2013 document named for its author, then–Deputy Attorney General James M. Cole. The Cole memo guided federal prosecutors not to expend resources prosecuting state-legal marijuana businesses unless a case met one of eight law enforcement priorities, such as distributing pot to minors or trafficking product across state lines. Within the industry, and in legal practice, it was widely interpreted to mean working or investing in this federally illegal industry did not put people at risk of federal prosecution.
With this protection in place, legal cannabis became one of the fastest-growing industries in the country. Sales jumped from $1.5 billion in 2013 (U.S.) to an estimated $10 billion (for North America) in 2017, according to Arcview Market Research. The industry now employs more than 150,000 Americans and has become more deeply entrenched in every quantifiable way.
With Thursday’s reversal, Sessions is alerting state-legal cannabis businesses that once again they are fair game for federal prosecutors. But the legal climate has changed so much it probably doesn’t matter. When the memo first came out, Colorado and Washington state had voted to legalize recreational marijuana the previous November, but neither market had opened. No one knew if it would be a disaster. Today, industries operate in several states and have given alarmists almost no fodder for complaint.
And legalization is popular. An October 2017 Gallup poll found an all-time high of 64 percent of Americans support full legalization. The same poll was also the first time Gallup recorded a majority of Republicans, 51 percent, favoring full legalization.
As for medical marijuana, public support now hovers at about 90 percent. Veterans, a traditionally right-leaning demographic, are now among the most vocal advocates for medical-marijuana research. In particular, they want to see it studied as a therapy for PTSD and traumatic brain injury. There is also growing, and increasingly credible, interest in cannabis as an “exit drug” from opiate addiction. (FiveThirtyEight considers legalization is among the least polarizing issues in the country.)
Sessions has sat out this remarkable shift in public opinion. In 2016, he said, “Good people don’t smoke marijuana.” By November 2017, his views had evolved slightly to acknowledge that marijuana is not as destructive as heroin. However, he remains skeptical about the plant’s medical uses and has not shown any outward interest in how much the politics of pot, and the facts on the ground, have changed since the “Just Say No” era.
Instead, during his first year as attorney general, Sessions has repeatedly tried to clear a path to crack down on the federally illegal drug.
This has been more difficult than you might think for the nation’s top law enforcement official.
The Cole memo provided “guidance” for federal prosecutors, but since December 2014, a law has been in effect that blocks the Justice Department from spending resources prosecuting state-legal medical-marijuana businesses. Now known as the Rohrabacher–Blumenauer amendment, for two of legalization’s strongest supporters in Congress, it was renewed annually until November 2017, despite Sessions’ efforts to kill it. The next question is whether it will be renewed again with the spending bill that needs to pass by Jan. 19 to avoid a government shutdown.
On a conference call with reporters Thursday, a bipartisan group of pro-legalization members of Congress suggested Sessions’ move may backfire. Sessions, they said, may have galvanized legalization supporters there to attempt to include recreational as well as medical cannabis businesses in the law. In 2015, such a provision fell slightly short in a 222–206 House vote. If it passed this time, it would cancel out Sessions’ decision to rescind the memo.
If Sessions thought killing the Cole memo would be easy, the past 24 hours have been a rough correction. Colorado Republican Sen. Cory Gardner, who has a robust marijuana industry in his state to worry about, tweeted that ending the Cole memo “directly contradicts what Attorney General Sessions told me prior to his confirmation.” Gardner threatened to hold up Justice Department nominees “until the Attorney General lives up to the commitment he made to me.”
By killing the Cole memo, Sessions may have accidentally underscored that the industry no longer needs the protections the document offered.
Gardner, who’s up for re-election in 2020 in a state Hillary Clinton comfortably won, doesn’t want to be the guy voters remember for taking away their weed. Neither, it seems, does anyone else. Sessions critics on Thursday included Republicans from Alaska, Massachusetts, Nevada, California, Florida, Virginia, and Kentucky. Freedom Partners, a group linked to the Koch Brothers, who support criminal justice reform from the right, said, “When it comes to marijuana laws, we agree with President Trump that it’s ‘up to the states.’ ” (Press secretary Sarah Huckabee Sanders said Thursday that Trump “believes in enforcing federal law.”)
Aside from tepid support from one congressman, Maryland Republican Rep. Andy Harris, it appears that virtually no politician or entity in Washington shares Sessions’ fixation on marijuana. Kevin Sabet, the country’s most prominent anti-legalization activist, and the head of a group called Smart Approaches to Marijuana, told me he favored Sessions’ decision because it might make it harder for weed companies to raise money but said he didn’t expect it to lead to a substantial crackdown, at least in the short term. A few U.S. attorneys even made statements saying the end of the Cole memo would have little to no effect on deciding which cases to prosecute.
There may be good reasons to oppose legalization, but with medical marijuana now legal in 30 states, including big swing states like Ohio, Pennsylvania, Michigan, and Florida, it’s hard to see any political upside to opposing legalization. The exception might be within the states themselves. In part to keep Sessions away, some legal states have made a point of stepping up enforcement of state cannabis laws. (For example, recently in Colorado, 10 low-level employees at the dispensary chain Sweet Leaf have been charged with felonies and misdemeanors associated with “looping,” allowing shoppers to make repeat visits to exceed legal purchasing limits. The charges stemmed from a yearlong police investigation.)
There is a way Sessions could succeed in catalyzing some kind of crackdown. He has given greater discretion over federal marijuana cases to 93 U.S. attorneys, among whom there’s bound to be some who want to see more marijuana prosecutions, especially as more are Trump appointees.
Sessions also supports a controversial practice known as civil asset forfeiture that gives law enforcement broad leeway to seize and keep assets when they believe there’s probable cause of a crime being committed. On the conference call, Rep. Dana Rohrabacher, a California Republican, said asset forfeiture can create “perverse incentives” to prosecute crimes that shouldn’t be prosecuted. And cannabis companies that now operate expensive factories and often have to keep large amounts of cash on hand make tempting targets for law enforcement keen on using this tactic.
For prosecutors, though, it may look like a mixed bag. After the Cole memo came out in 2013, then–U.S. Attorney Melinda Haag continued prosecutions against Harborside Health Center, a prominent dispensary in Oakland, California, and two other Bay Area dispensaries. None of her prosecutions were successful. In May 2016, when the federal government abandoned the case, Harborside co-founder Steve DeAngelo, one of the industry’s most prominent executives, said “the dismissal signals the beginning of the end of federal prohibition.” Krane, of the cannabis company 4Front, suggested prosecutors may now be wary of repeating such a boondoggle.
This Monday, California’s recreational market officially came online, and Harborside opened its doors at 6 a.m. The lawyer who defended Harborside made the first legal purchase.