This is an opinion piece by Tamar Todd, director of legal affairs at the Drug Policy Alliance, and Jolene Forman, a staff attorney at the Drug Policy Alliance.
On January 4, three days after California began legal sales of marijuana, Attorney General Jeff Sessions put a damper on the New Year by rescinding the Cole Memo, an Obama-era guidance that limited federal interference in state marijuana programs. The Department of Justice marijuana enforcement guidance, put in place in August 2013, followed Colorado and Washington’s move to legalize marijuana for adult use the previous year. While that guidance did not protect anyone specifically or provide any sort of legal immunity, it directed U.S. Attorneys to de-prioritize the enforcement of federal law against individuals who were acting in lawful compliance with state law, so long as they were not threatening eight enumerated federal priorities.
These included harms to minors, connections to violence, interstate trafficking, and using public lands to grow marijuana. This provided reassurance and direction to voters and states eager to adopt a less asinine marijuana policy than the federal government’s approach over the last 50 years. Implementation proceeded in Washington and Colorado, and seven more states and DC adopted similar initiatives, with Vermont legalizing on January 22, 2018, within weeks of Session’s move.
Several states seem to be rushing to pass marijuana legalization bills and Vermont just became the first state to legalize marijuana through a state legislature.
Sessions’ actions contradicted President Trump’s campaign promises to leave marijuana regulation to the states. Sessions’ motive for doing so is unclear. Is he flexing his federal muscles and federal power to scare states that dare to depart from federal policy? Is he trying to inject uncertainty and instability into the marijuana markets in an effort to make legalization look like it isn’t working as well as it has been and to justify continuing racially discriminatory marijuana related enforcement? Does he want to arrest the millions and millions of Americans who consume marijuana, who he has stated he believes are not good people? Or, is he just rejecting everything his predecessor did despite its logic and sound approach? Who knows? And does it matter?
What Jeff Sessions doesn’t realize is that the power and momentum to legalize marijuana is much stronger than he is. In fact, his actions may end up demonstrating the real limits of federal power, both politically and practically, over citizens and states that reject federal drug policies.
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Since the marijuana legalization experiment began over five years ago, public support for legalization has only grown. Nearly two-thirds (64 percent) of Americans support legalizing the use of marijuana, including a majority of Republicans. Elected officials on both sides of the aisle, including some who have opposed legalization in the past, came out with harsh rebukes to Sessions’ new marijuana policy. And few of the states appear scared of Sessions’ latest actions and dated rhetoric.
In fact, it may have had the opposite effect. Several states seem to be rushing to pass marijuana legalization bills and Vermont just became the first state to legalize marijuana through a state legislature. Turning back legalization is going to be harder than Sessions thinks and it is our job as citizens, state lawmakers, and defenders of sound and sane public policy to make it as hard as possible.
Here is what we should do.
States should continue to legalize.
Vermont was not intimidated. The Vermont house legalized marijuana a few hours after Sessions rescinded the previous DOJ guidance. The New Hampshire House of Representatives passed a legalization bill days later. The federal government has no power to force states to criminalize marijuana under state law and cannot prevent states from removing criminal penalties from state law. The vast majority of states legalized medical marijuana before there was any guidance from the DOJ. Since the vast majority of drug related arrests—over 90 percent—are carried out by state and local law enforcement officers enforcing state (not federal) law, states have the power to eliminate the vast majority of arrests by changing state law.
States should continue to regulate responsibly.
When Sessions rescinded the memo, he did not tell U.S. Attorneys to go after marijuana users or businesses operating lawfully under state law. Instead, he directed the U.S. Attorneys to use their regular discretion – which they retained while the Cole Memo was in effect – to decide when and where to enforce federal law. U.S. Attorneys have to make choices about where to spend limited resources and which crimes to prosecute. Any U.S. Attorney who decides that public safety resources are better spent prosecuting marijuana users or disrupting laws that are overwhelmingly supported by voters and thoughtfully and carefully implemented by state lawmakers and regulators – rather than prosecuting violent crimes – has no businesses being a prosecutor.
If the DOJ wants to enforce federal law in states that have rejected prohibition then they have to go at it alone.
Marijuana legalization is having a positive public policy and social and racial justice impact on states. The US Attorneys must be accountable for how they choose to spend resources. They face the challenge of seating a jury in a state that voted for legalization by a significant margin and then asking that jury to convict a person who is in full compliance with that new state law.
State and local lawmakers should invoke their tenth amendment rights and refuse to cooperate with federal law enforcement.
In California, lawmakers are considering a non-cooperation bill that would prohibit state and local law enforcement and agencies from providing any cooperation or assistance to federal law enforcement in enforcing federal marijuana laws against people in compliance with state law. Similar bills are being considered in Arizona, Massachusetts, and Washington. If the DOJ wants to enforce federal law in states that have rejected prohibition then they have to go at it alone. The state will not provide and information or assistance in any form. Other states should adopt similar measures.
States and localities should defend businesses that are attacked.
If a U.S. Attorney does decide to proceed in an action against a state licensed and lawfully compliant business, the state and local government should get involved. When a forfeiture action was brought against Harborside Health Center, the City of Oakland intervened. When a similar action was brought against Berkeley Patients Group, the City of Berkeley intervened. A number of state attorneys general, governors, and lawmakers in states where marijuana is legal have already spoken out about the need to protect their state laws and citizens from federal aggression. These elected state officials should proactively reach out to U.S. Attorneys and educate them on how the state regulatory programs are working and why federal interference will disrupt their efforts to protect public health and safety.
They need to advocate for a more permanent solution than a budget rider by advancing legislation that removes federal penalties for marijuana related conduct, especially for individuals and businesses acting in compliance with state laws and regulations.
Establish legal defense funds.
Businesses should establish legal defense funds. The federal government may go after individual businesses in order to set an example and generate fear. The larger industry should band together to help defend those who are targeted to strengthen the system as a whole and make it much more difficult for the DOJ to pick off and target specific people.
Demand federal reform.
Federal lawmakers should renew the Rohrabacher amendment, an appropriations rider that prevents Sessions and the US Attorneys from wasting scarce DOJ resources to undermine legitimate and thoughtful state medical marijuana laws. They need to expand the amendment beyond just medical marijuana to also protect state adult use marijuana programs. And, they need to advocate for a more permanent solution than a budget rider by advancing legislation that removes federal penalties for marijuana related conduct, especially for individuals and businesses acting in compliance with state laws and regulations. Federal lawmakers represent constituents in states, most of which now have adult use or some form of medical marijuana law. These lawmakers, across the aisle, are motivated to protect their constituents, protect state sovereignty, and approve meaningful federal reform.