What’s Actually in Sessions’ New Cannabis Memo?
January 16th, 2018
It’s no secret that Attorney General, Jeff Sessions, has long been opposed to marijuana legalization. It’s also no secret that Sessions knows very little about the drug itself, having famously said, “good people don’t smoke marijuana.” But, unfortunately for cannabis users and the industry as a whole, Sessions’ ignorance matters much less than his current position of power.
On January 4th, Sessions announced a massive blow to marijuana progress with his memo that stated he has rescinded the Obama-era Department of Justice (DOJ) Cole memo. The Cole memo was created in response to cannabis’ mixed legality across the United States and essentially stated that the federal government would stay out of state marijuana issues. In other words, people using, growing, and selling marijuana in states where it’s legal to do so wouldn’t have to worry about being incriminated by the federal government.
Well, thanks to Jeff Sessions, we can all say goodbye to this reasonable policy. In his one page memo, Sessions announced that the federal government will return to enforcing its uninformed federal marijuana laws, effective immediately. An excerpt from the memo:
“In 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… These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community. Given the department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.”
Sessions’ move was a blatant affront to the interests of the country given that 64% of Americans report being in support of marijuana legalization. And making this move even more perplexing is the fact that Sessions went against his own party’s interests—51% of Republicans now support marijuana legalization, a figure that’s up nine points from last year.
Because the country feels one way and Sessions feels another, it’s difficult to determine what, exactly, this move means for the marijuana industry. Some industry experts aren’t at all concerned about the change while others are completely panicked because of it.
Fortunately, the memo alone isn’t a law, so it doesn’t really directly change much as of yet, but whether the federal government’s 93 U.S. Attorneys will start investing its resources into prosecuting state-legal marijuana businesses remains to be seen. So, at the very least, this move adds to the massive uncertainty that already surrounds the cannabis industry.
That uncertainty really comes into focus when you examine the highly variable responses from industry leaders to the memo. The responses run the gamut of beliefs from fearing this will be the end of the marijuana industry to thinking it’ll actually be good for marijuana legalization in the long run.
Cannabis activist, Tom Angell, writes in his article, Why Sessions’ Anti-Marijuana Move Might Be Good for Legalization, “Whereas the marijuana industry has been operating in a sort of legal gray area under the Cole memo and the medical cannabis budget rider, the Sessions move forces marijuana to the forefront of American politics, where a breaking point may finally be reached.” In other words, Angell speculates that this will be the push Congress needs to end the uncertainty and make the drug federally legal.
Many who currently work in the marijuana industry, however, have a less optimistic view. Erik Knutson, CEO of Colorado-based Keef Brands, told Rolling Stone that he’s most concerned about the impact the memo will have on the marijuana industry’s relationship with banks, stating that financial institutions “basically crafted all of their banking policies around the Cole memo in 2013 to make sure the companies are compliant with federal law. This reversal throws into doubt that legality and could, potentially, lead to violent crime: if the banks decide to pull out, cash transactions will become the norm again, and that leaves employees, managers and anyone dealing with cash [vulnerable].”
Still, the fact that many members of Congress vehemently oppose Sessions’ move to rescind the Cole memo, including those from his own party, should give those invested in the cannabis industry some hope that ultimately Congress will show support for legalization.
Senator Cory Gardner, who is a Colorado Republican, tweeted his dismay about the change: “This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation. With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states. I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.”
And Oregon Democratic Senator Earl Blumenauer, who sponsored the Rohrabacher-Farr amendment protecting state medical cannabis laws, didn’t mince words with the statement he issued on the matter:
“This is outrageous. Going against the majority of Americans–including a majority of Republican voters–who want the federal government to stay out of the way is perhaps one of the stupidest decisions the Attorney General has made. One wonders if Trump was consulted–it is Jeff Sessions after all–because this would violate his campaign promise not to interfere with state marijuana laws. It’s time for anyone who cares about this issue to mobilize and push back strongly against this decision.”
What the Future Holds
While Jeff Sessions’ move to rescind the Cole memo reopens the door for federal prosecution of state-legal marijuana matters, the memo itself doesn’t change anything directly but rather leaves prosecutorial decisions up to the 93 U.S. Attorney Generals.
Therefore, those invested in the success of the cannabis industry should proceed with caution but not necessarily without optimism. Given that the majority of Americans, as well as members of Congress across both parties, are in support of legalization and vehemently opposed to Sessions’ recent move, widespread federal prosecution of state-legal marijuana businesses is not likely to happen in the near future.
Still, cannabis entrepreneurs, in particular, should be aware that the increased uncertainty this memo brings to the industry might further impact financial institutions’ willingness to work with cannabusinesses.
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