Lawsplainer: Attorney General Sessions' Threatened Action on Marijuana
January 4, 2018
by Ken White
WAKE UP WAKE UP THEY'RE COMING FOR ME I NEED BAIL MONEY
THE FBI THEY'LL BE HERE ANY MINUTE BECAUSE I ATE THAT NO-GLUTEN BROWNIE AT AN OSCARS PARTY IN LOS FELIZ
What the hell is going on?
The feds! They're coming after us for our marijuana!
Wait. Is this about Attorney General Jeff Sessions saying he will rescind Obama-era Department of Justice memos about federal prosecution of marijuana transactions that are legal under the laws of various states?
Yes! Yes. That. The rescindition, with the thing, and Sessions. And marijuana.
Okay. And do you know the context?
YES! Yes. Yes. A bit. A bit. No. Not really.
Okay. Let's talk about what it means.
So I'm not getting arrested by the ATF right away?
You don't . . . the ATF doesn't . . . you know, just hold on a second and let's go through this.
So. Let's start with basics.
Many states make it illegal to possess or distribute marijuana. Until recently it was all states. It's also a crime under federal law. Even simple possession of marijuana — that is, possession for personal use, not to distribute to someone else — is a federal crime.
Wait, you were a federal prosecutor back in the 18th Century or something. Did you actually prosecute people for marijuana?
Yes. I'm not proud of it. I prosecuted people for involvement in marijuana cultivation and distribution operations — operations involving 500 plants or more. It was wrong, and I'm actually ashamed of it.
For many years there wasn't a conflict between state and federal law. Both prohibited marijuana. But then states, one by one, began making marijuana legal — first for medical purposes, then for personal use.
What did that do to the federal law?
It did nothing. Marijuana remained illegal under federal law. Under the Supremacy Clause to the United States Constitution, the states can't immunize people from federal prosecution — they can make things legal under state law, but can't make things legal under federal law. Cultivating marijuana and distributing it were a federal felony. Only policy, prosecutorial discretion, and resource allocation would save you from being prosecuted federally for marijuana distribution that was legal under state law.
That sounds like a recipe for uncertainty and disaster.
It was. Under the Obama Administration, the United States Department of Justice issued a series of memos with guidelines for federal prosecutors to help them decide whether and when to launch federal prosecutions of marijuana offenses that might be legal under state law. The first, in October 2009, was called the Ogden Memorandum, named after a Deputy Attorney General. It said that federal prosecutors "should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with state laws" permitting medical marijuana use. Instead, it said that federal prosecutors should focus on only those marijuana cases that reflected high federal interest: cases involving possession of guns, violence, sales to minors, ties to criminal enterprises, financial shenanigans, and distribution of other illegal substances.
But in 2009 the state laws were only about medical marijuana, right? What about when personal use marijuana became legal in some states?
There were more memos about that, called the Cole Memoranda. Deputy Attorney General Cole issues a series of memoranda further articulating Department of Justice policy in the face of emerging state laws legalizing personal use of marijuana. The upshot was this: the Cole Memoranda said that as long as states effectively regulated marijuana usage to assure compliance with state personal use laws, the Department of Justice would focus its resources on federal interests: sale to children, connections to organized crime, transportation from one state to another, use or cultivation on federal property, and use of financial systems to launder or conceal proceeds. Other parts of the federal government followed suit: for instance, the Treasury Department's Financial Crimes Enforcement Network (FINCEN) issued guidelines for financial institutions for dealing with customers engaged in state-legal marijuana businesses.
So if you want to grow or sell marijuana in states where it's legal, you're safe from federal prosecution as long as you obey state law, stay away from kids and organized crime, and the federal prosecutors obey the Department of Justice guidelines?
In theory. Plus, Congress got into the act.
In 2014, in the Rohrabacher-Farr amendment to an appropriations bill, Congress prohibited the Department of Justice from using federal money to "prevent" states from implementing laws making medical use of marijuana legal. Courts have found that this amendment may prohibit federal prosecutions for medical marijuana activities that are legal under state law.
Since then, Rohrbacher-Farr has been included in each appropriations bill and continuing resolution.
So what does all this mean for people who want to use or sell marijuana in states law allow it?
First of all, practically speaking, federal prosecutors can't do much about marijuana use. Federal prosecutors only have the resources to prosecute a tiny number of cases compared to state prosecutors, and the vast majority of their time is taken up with other priorities: serious white-collar crime, immigration crime, guns, violent crime, and so forth. Typically federal prosecutors have guidelines that discourage taking any but the biggest marijuana cases — cases involving hundreds or thousands of kilos or many hundreds of plants.
Second, between the Ogden and Cole Memoranda and Rohrabacher-Farr, federal prosecutors haven't made serious attempts to thwart state laws making marijuana legal. They've made a few gestures consistent with the Cole memorandum — for instance, by sending letters to landlords of marijuana dispensaries that were operating in violation of state law, threatening that they could face prosecution or forfeiture for allowing their property to be used for marijuana activities in violation of state law.
But that could change.
How does Attorney General Sessions figure into this?
Sessions is a staunch foe of marijuana legalization. He asked Congress not to include Rohrabacher-Farr in appropriations bills back in 2017. He's previously sent mixed messages about the Ogden and Cole Memoranda. And now, reportedly, he wants to rescind the Ogden and Cole Memoranda and change Department of Justice policy on federal prosecution of state-legal marijuana activities.
Okay. But what does that really mean?
As long as Rohrabacher-Farr remains in every federal appropriations bill, Department of Justice policy is mostly symbolic — the Department of Justice will still be prohibited from spending money on prosecuting people for medical marijuana activities that are legal under state laws. (That doesn't limit prosecutions of non-medical personal use activities, though — but it will be difficult to tease them apart.) And, practically speaking, it's utterly impossible for the Department of Justice to prosecute more than a very tiny fraction of marijuana cases. They don't have the resources. A big U.S. Attorney's Office might file around 1200 indictments a year — that's all indictments for all types of cases and crimes. Of that, maybe a dozen, tops, might be about marijuana. They can't change that without sacrificing other priorities. They could abandon every other type of case and still not do a tenth of the marijuana cases that local authorities do. Moreover, marijuana legalization is quite popular, and federal interference in it is quite unpopular, so there's not a whole lot of upside.
That said, if Sessions revokes the Ogden and Cole memoranda — and especially if he also succeeds in convincing Congress not to include Rohrabacher-Farr in the next appropriations bill or continuing resolution — he'll inject a substantial amount of uncertainty into the situation. Even if getting prosecuted federally for marijuana is so rare that it's like getting struck by lightning, getting struck by lightning remains terrifying and often fatal. This will have relatively little impact on personal users, but it could have a significant impact on the development of the legitimate business side of marijuana cultivation in states where it is legal. Landlords who might rent to dispensaries, businesses that might service them, financial institutions that might handle their money, professionals that might advise them — those legitimate, high-profile, highly-risk-averse institutions will all be deterred from involvement in the industry. The process of turning marijuana from a street drug to a legally regulated commodity will, at least, be slowed down.
But I won't go to jail?
No. Unless the feds decide to file one of their extremely few marijuana prosecutions to make an example of you — if you run a prominent cultivation operation, or run a bank handling a cultivation operation's money, or something like that — your primary criminal risk will still be about compliance with state law. Your main concern will be that businesses and institutions will be slow to support an activity that the citizens of your state have chosen to make legal.
So what are you watching for?
Three things. First, I'm looking for the language of Sessions' revocation of the Ogden and Cole memoranda. Will he simply revoke them, or will he announce a new policy? That new policy will suggest the future risks of federal prosecution. It would not surprise me if this is mostly cosmetic: Sessions may issue a memorandum that has anti-marijuana propaganda but doesn't really change federal priorities or resource allocation.
Second, I'll wait to see if other policies change — for instance, whether FINCEN revokes its financial institution guidelines in reaction to any memo from Sessions.
Third, I will watch to see whether Rohrabacher-Farr is included in each appropriations bill and continuing resolution. If it is, that's still a substantial impediment to a federal anti-marijuana surge. If it's left out, then that signals significantly increased danger. If, on the other hand, it's kept in — or even expanded to include non-medical personal use — that's a good sign in the other direction.
First Edit: Several people think I am overstating how "safe" marijuana cultivation is under the Ogden/Cole/Rohrabacher-Farr regime. Not so. As my friend Nicholas Weaver points out, plenty of state agencies still use criminal prosecution and forfeiture to go after cultivation operations even in states where it's legal, relying on allegations that it's somehow being done in a way that violates state or local law. This 'splainer is primarily about federal involvement.
Second Edit: Sessions has issued his memo, available here. It's vague. It simply rescinds the Odgen and Cole Memoranda and says that the generally established principles of federal prosecution are sufficient to guide federal prosecutors in resource allocation. "These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of the particular crimes on the community." The memo doesn't announce a new policy of pursuing marijuana activities legal under state law.
Absent Sessions announcing new efforts to prosecute state-legal operations, the impact of the memo is mostly to increase ambiguity and risk, and to deter more mainstream businesses from getting involved in the industry, as I discussed above.
Third Edit: My language misleadingly suggested that Rohrabacher-Farr goes beyond medical marijuana, so I clarified that it only forbids Department of Justice spending on prosecutions of medical marijuana legal under state law. Practically speaking, it will be an impediment to personal-use prosecutions as well to the extent defendants claim they are in business to produce for medical use.