The marijuana industry flourished under President Obama, in part due to his decision to relax federal prosecution in states where the drug was legal.
The “Cole memo,” issued in 2013, directed federal prosecutors to focus on organizations selling weed to children, engaging in violence, or selling the drug in areas where it is illegal. In states where the drug is legal, enforcement was left to local authorities.
These states are “less likely to threaten” federal priorities like selling to children, wrote then-Deputy Attorney General James Cole. “The memo sets out harms we saw associated with marijuana” but otherwise, essentially “lets the states deal with this,” Cole told CNN. “Given a non-perfect situation, we figured this was the best way to deal with it.”
Attorney General Jeff Sessions reversed this policy on Thursday, enabling federal prosecutors to “more aggressively enforce drug laws governing marijuana trafficking and sales,” reports The Wall Street Journal.
Sessions argues the Obama-era policy “undermines the rule of law” and told federal prosecutors to “follow the well-established principles that govern all federal prosecutors” in deciding on which marijuana-related activities to focus.
Sessions’s memo “reduces the level of comfort in the industry until it sees how US attorneys actually implement it,” says Cole. “Each US attorney now gets to decide what will and will not be prosecuted…There was a previously higher level of reliability that you could operate your industry if you followed certain rules. That’s not necessarily being destroyed, but it is being thrown into question.”
At least one attorney from Colorado has already said he will not be changing his approach towards marijuana prosecutions.
Sessions’s decision comes days after California became the seventh state to allow recreational marijuana. Massachusetts will allow it in July of this year, and a proposal is pending in Maine.
California Lieutenant Governor Gavin Newsom has already promised to pursue “all legal, legislative, and political options to protect its reforms and its rights as a state.” Justice Department officials say they are unsure whether they will take legal action against states where the drug is legal.
The policy change also raises questions about tax revenue and further complicates the situation for banks that are already scared to join the marijuana industry. Among the rules withdrawn on Thursday was a 2014 Justice Department policy that allowed banks to do business with pot sellers in states where the drug was legal.
Thursday’s announcement was met with broad criticism from politicians in both parties.
Alaska Senator Lisa Murkowski (R) said the decision is “disruptive to state regulatory regimes and regrettable.”
Rep. Earl Blumenauer (D-OR) called the decision “outrageous,” saying that it goes “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.”
As Rep. Dana Rohrabacher (R-CA) points out, Sessions’ decision could actually increase marijuana violence by pushing sales into the black market. “Sessions has shown a preference for allowing all commerce in marijuana to take place in the black market, which will inevitably bring the spike in violence he mistakenly attributes to marijuana itself. He is doing the bidding of an out-of-date law enforcement establishment that wants to wage a perpetual weed war and seize private citizens’ property in order to finance its backward ambitions.”
Others have pointed to a 2016 interview in which President Trump said legalization is a decision that should be left to the states.
“This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation,” tweeted Senator Cory Gardner (R-CO). “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.”