Federal Marijuana Prosecutions: A New World, or More of the Same?

On January 4, 2018, the U.S. Department of Justice published guidance (the Sessions Memorandum) from Attorney General Sessions to local U.S. Attorneys on charging marijuana-related violations of federal criminal law.  In particular, the Sessions Memorandum repudiated 2013 Obama Administration guidance (known as the Cole Memorandum) that recommended against charging against state-licensed marijuana cultivators and retailers.  However, the Sessions Memorandum did not announce new enforcement priorities or order U.S. Attorneys to start bringing charges against marijuana businesses operating legally under state law.

Who Can Enforce Federal Marijuana Laws

The Sessions Memorandum is an example of guidance from the main (Washington) office of the Department of Justice to its local branches in the 94 judicial districts located throughout the United States and its territories.  The Department of Justice Office in each judicial district is run by a lawyer called the United States Attorney.   For example, Byung J. “BJay” Pak is the U.S. Attorney for the Northern District of Georgia and runs the Atlanta office.

To become a U.S. Attorney, a lawyer must be nominated by the President and approved by the Senate.  28 U.S.C. 541.  In the absence of a confirmed nominee, a district office is run by a career Department of Justice employee or a short-term interim appointee.  28 U.S.C. 546.  Each district operates with considerable autonomy and selects its enforcement priorities depending on local concerns.  However, the Attorney General can also declare national priorities via written guidance.

The Trump Administration’s Stance on Marijuana

The Sessions Memorandum reflects Mr. Sessions’s oft-stated belief that “it is not the Attorney General’s job to decide what laws to enforce.”  In this case, the Controlled Substances Act proscribes penalties for the sale, cultivation, and possession of “marihuana.”  21 U.S.C. 841.

The Sessions Memorandum supersedes the Cole Memorandum, which made enforcement of controlled substance laws against entities that complied with state marijuana laws a low enforcement priority. Under the Cole Memorandum, as long as these state-regulated persons did not divert marijuana outside the regulated system, provide marijuana to children, or engage in other criminal activity, they would be in a “safe harbor” and federal authorities would not prosecute.

The Sessions Memorandum eliminates these special rules for cannabis enterprises whose operations are condoned by the states in which they operate.  Instead, it instructs U.S. Attorneys to make charging decisions with reference to guidelines found in the U.S. Attorneys’ Manual (USAM).  However, even under the USAM guidelines, the charging decision analysis changes little.

How Federal Officials Decide When to Prosecute

To charge a person with a violation of federal criminal law the U.S. Attorney must “believe[] that the person’s conduct constitutes a federal offense, that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and that a substantial federal interest would be served by the prosecution.”   USAM 9-27.220(A).  However, a U.S. Attorney is not supposed to consider whether a jury is likely to acquit the defendant because of the unpopularity the prosecution in making a charging decision.  USAM 9-27.220(B).  With respect to marijuana offenses, the defendant’s own business records would be sufficient to satisfy the elements of the offense and proof requirements, thus whether to bring charges turns on the existence of a substantial federal interest.

The U.S. Attorneys Manual provides an eight-factor test to consider in deciding whether a substantial federal interest is present.  The factors to be considered are:  (1) federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities; (2) the nature and seriousness of the offense; (3) the deterrent effect of prosecution; (4) the person’s culpability in connection with the offense; (5) the person’s history with respect to criminal activity; (6) the person’s willingness to cooperate in the investigation or prosecution of others; (7) the interests of any victims; and (8) the probable sentence or other consequences if the person is convicted.  USAM 9-27.230(A).

Applying Federal Prosecution Rules to Marijuana

Most of these factors go against finding a substantial federal interest in prosecuting state-licensed marijuana entities.  With respect to federal priorities, the Sessions Memorandum conspicuously avoids making marijuana enforcement a national priority.  With respect to nature and seriousness of the offense, the USAM notes that public indifference or opposition to enforcement of the controlling statute and/or a history of non-enforcement of the statute are factors to be considered.  USAM 9-27.230(B)(2).  While this language would seem to be dispositive, the USAM notes that this factor alone should not be used to justify a decision to prosecute as “public and professional responsibility sometimes will require the choosing of a particularly unpopular course.”  USAM 9-27.230(B)(2).

Further, participants in state-approved enterprises are unlikely to have criminal records due to state regulations prohibiting such persons from operating marijuana businesses.  Finally, it is doubtful that the federal government will find many people claiming to have been victimized by state-regulated marijuana businesses.

The only factor favoring prosecution is deterrence, as prosecution of a state-licensed entity is likely to have a chilling effect on existing and future entrants into state-regulated market.  Further, large scale cultivators and retailers in states with approved recreational or medical marijuana are likely to be considered criminal enterprises under federal law, and may be at a higher risk of prosecution, especially since the federal sentencing regime begins at fifty plants, a figure most cultivators are likely to exceed by a considerable margin.  21 U.S.C 841.

Federalism, the Constitution, and Legalized Marijuana

Beyond the issue of a federal interest, there are also issues of federalism and Congressional relations to consider.  While the Federal Controlled Substance Act overrides contrary state laws under the Constitution’s Supremacy Clause, many prudential reasons exist to decline federal prosecution of state-licensed cannabis entities.

First, local U.S. Attorneys are typically appointed in consultation with state political leaders and might not be willing to go against the controlling sentiment of their home state and engage in prosecutions that challenge state sovereignty.

Second, U.S. Attorney nominees may be blocked by the Senate unless they promise to refrain from charging state-regulated marijuana businesses.  The Trump Administration has been slow to nominate and obtain Senate approval of permanent U.S. Attorneys, leaving many offices run by career DOJ employees and unapproved interim appointees.  As of January 11, 2018, many jurisdictions that have approved recreational or medical marijuana do not have permanent U.S. Attorneys.  For example, of the 9 districts located in Western states with legal recreational marijuana (California, Colorado, Nevada, Oregon and Washington), the Trump administration has only nominated candidates for 2 districts, neither of whom has been approved by the Senate.  Caretaker and interim U.S. attorneys are unlikely to rock the boat and initiate unpopular prosecutions.

With Marijuana, the Money Matters

Finally, a budgetary rule known as the Rohrabacher-Farr Amendment partially codifies the policies in the Cole Memorandum.  This Amendment, which has been part of every budget passed since 2014, bars the Department of Justice from spending money to prosecute medical marijuana providers.  While the Department of Justice has disputed the legal effect of this amendment, several court decisions have granted relief to defendants based on this rule.  A 2015 U.S District Court decision, U.S. v. Marin Alliance for Medical Marijuana, ruled the Amendment barred the government from pursuing civil forfeiture action against a licensed medical marijuana provider operating lawfully under California state law.   In 2016, in U.S. v. McIntosh, the Ninth Circuit Court of Appeals ruled that parties in complete compliance with their states medical marijuana licensing rules could seek an injunction to stop prosecution.  Both decisions emphasized that the defense provided by the Amendment only remains in effect so long as it continues to be incorporated in annual federal budgets.

Conclusion

While the elimination of the Cole Memorandum has created uncertainty as to whether the Federal government will continue to take a hands-off attitude towards state-regulated marijuana businesses, the factors set out in the U.S. Attorneys’ Manual continue to caution U.S. Attorneys against bringing charges.  Further, the strong possibility of upsetting relations with states and their representatives in Congress also makes new enforcement actions unlikely.  At present, unless a state-regulated entity is engaged in activities that are illegal under both state and federal law, prosecution seems unlikely.  In other words, while the Sessions Memorandum may have wiped the Cole Memorandum off the books, the policies set forth in the Cole Memorandum are still likely to guide charging decisions going forward.

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