Cole Memo and Other Marijuana-Related Enforcement Guidance Rescinded by the Department of Justice Creating Greater Uncertainty for State-Legal Marijuana Businesses

On January 4, 2018 the Department of Justice rescinded Obama-era guidance to United States Attorneys, including the 2013 memorandum issued by then-Deputy Attorney General James Cole, calling previous guidance “unnecessary” in light of general principles governing federal prosecutorial discretion. Up until this point, the 2013 Cole Memo was widely viewed as the biggest reason state-legal marijuana programs to flourished over the past 5 years, as it directed United States Attorneys to consider distinct federal enforcement priorities when deciding whether to utilize finite government resources to prosecute state-legal marijuana businesses or whether to rely on state and local law enforcement to address those concerns.

In doing so, current Attorney General Jeff Sessions issued a statement, saying, “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.” He also stated in his memo that, “[i]n deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions.”

Importantly, the January 4 Sessions Memo does not direct federal prosecutors to “crack down” on state-legal operators. It does, however, removes the previous guidance of how to prioritize the allocation of finite resources, and also rescinds guidance to financial institutions regarding compliance with federal law when servicing marijuana businesses. As such, it is likely to result in greater uncertainty for the legal marijuana industry. Marijuana stocks have already plunged following the news.

Responses from various United States Attorneys, however, have not yet indicated a wide-ranging policy shift at the local level. Current U.S. Attorney for the Southern District of Ohio, Ben Glassman, stated, in part:

The Attorney General’s memorandum on marijuana enforcement is consistent with our practice in the Southern District of Ohio. Congress made marijuana illegal under the Controlled Substances Act. That was true under Deputy Attorney General Cole’s 2013 memorandum on marijuana enforcement, and it’s just as true under the Attorney General’s memorandum today. Also true then as now is that the federal law enforcement has limited resources and that we necessarily focus or prosecutive decisions where we can make the biggest impact in reducing harm and promoting safety.” [emphasis added]

As reported by Marijuana Business Daily, other U.S. Attorneys have echoed these sentiments:

• U.S. Attorney Bob Troyer of the District of Colorado said “[t]he United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state[.]”
• Annette Hayes, U.S. attorney for the Western District of Washington, released a statement saying that Sessions simply “reiterated his confidence” that U.S. attorneys can decide which marijuana crimes to prosecute.
• Halsey Frank, the U.S. attorney for the District of Maine, told Marijuana Business Daily in an email that he “will follow long-established principles to prosecute federal crime” including “wise use of limited resources.”

The Department of Justice also continues to be constrained by the Rohrabacher-Blumenauer Amendment, a budget rider that has been interpreted to prohibit the Department from prosecuting individuals acting in strict compliance with a state’s medical marijuana laws. Rohrabacher-Blumenauer has been included in each appropriations bill since 2014, but it is set to expire on January 19 unless it is renewed once again by Congress.

Rohrabacher-Blumenauer, by its explicit text, applies only to medical marijuana states. A similar provision known as the McClintock-Polis Amendment would have extended protections to adult-use markets but failed narrowly in the House of Representatives by a vote of 206-222 in 2015.

Opponents of legal marijuana are claiming victory, and many advocates are now looking to Congress to codify protections for state-legal marijuana businesses. So far, both Democrats and Republicans on Capitol Hill have been largely critical of the decision to rescind the Obama-era marijuana guidance, as the New York Times reports. The bipartisan criticism may be due to increased acceptance of marijuana reform over the past few years.

The most prominent Republican to criticize the move has been Colorado Senator Cory Gardner, who opposed Colorado voters’ decision to legalize adult use marijuana in 2012. He promised to place a hold on all Department of Justice nominees until Jeff Sessions upholds his pre-confirmation commitment to allow states to implement their own marijuana laws.

Despite the growing uncertainty, Ohio’s medical marijuana program will move forward, as reported by Jackie Borchardt with Cleveland.com. Department of Commerce spokesperson Stephanie Gostomski said, “[o]ur responsibility is to fulfill all statutory mandates in establishing Ohio’s medical marijuana program,” and the Department “cannot speculate on any decisions made at the federal level, but our program officials will continue to monitor any developments.”

Frantz Ward will continue to closely monitor any developments relating to federal enforcement policy changes and Ohio’s medical marijuana program. To learn more, please do not hesitate to contact Tom Haren or any other member of the Frantz Ward Marijuana Law & Policy team.