Massachusetts Law and Legal Marijuana in Early 2018

December 10, 2018

Federal Building — Photo by: Brandon Bourdages/Shutterstock

The US Attorney of Massachusetts would not confirm if he will refrain from using federal law to prosecute cannabis businesses. The new Massachusetts U.S. Attorney, Andrew Lelling, was forced to make a statement after Attorney General Jeff Sessions rescinded the Cole Memo in early January, resulting in demands from cannabis advocates to detail his plans as a federal prosecutor.

Current list of Massachusetts recreational dispensaries that are open.

The Cole Memo and Federal Marijuana Law

The Cole Memo, written by former Attorney General Eric Holder, barred federal prosecutors from enforcing federal law on businesses in states with legalized marijuana, allowing states to regulate and enforce their own local cannabis laws. Now that the law has been rescinded, federal U.S. Attorneys in each state can enforce federal law and conduct mass arrests should they choose to do so.

Lelling released his statement Monday saying that he could not provide any assurances of immunity from federal prosecution. He added that only Congress can change federal law, which says that marijuana cultivation and possession is a federal crime and that he has sworn to enforce federal law. The new state Attorney General also said that he would decide about prosecuting businesses on an individual basis to determine case worthiness and that he plans to go after large cultivation businesses. Lelling was appointed by Trump and took office in late December.

The States’ Rights Debate

In 2016, Massachusetts law changed when 54 percent of the people voted to legalize marijuana, although most of the leading politicians were against legalization. The state Attorney General Maura Healey and Gov. Charlie Baker were both against legalization. However, both politicians were opposed to the decision by Sessions to rescind the Cole Memo and undermine state rights. An amendment that blocks federal funds from being used to prosecute in legal states expires this month, allowing federal attorneys to begin making raids at their discretion.

The U.S. Attorney for the Southern District of California, Adam Braverman, also released a statement supporting Sessions rescinding the Cole Memo. Braverman added that the state will continue to prosecute those involved with cultivation, distribution, and possession of marijuana and to enforce federal laws.

Pushback from Both Sides of the Aisle

Not all states are as welcoming as Massachusetts to the move by Sessions, and even members of his own party have denounced his decision. Sen. Cory Gardner (R-Colo.) was angered and said that all Justice Department Senate nominations will be blocked as a result. The Senator also said that the Attorney General had previously told him that the Trump administration would not interfere with state laws, adding that Sessions has “trampled” on the voters’ will. Rep. Ryan Costello (R-Pa.) also expressed his disappointment, saying that the U.S. Attorney General’s office should leave states alone. He added that medicinal research rather than outdated federal regulations should influence our marijuana laws. Sen. John Cornyn (R-Tex.) sent out a tweet that said Congress needs to stop ignoring federal law and should hold hearings to discuss changing federal law.

Democrats weren’t thrilled with Sessions, either. Rep. Ed Perlmutter (D-Colo.) tweeted his dismay by stating that 46 states currently permit cannabis in some form and that going backwards now is not an option. The Colorado Senate Democrats sent out a tweet saying, “We’ll give Jeff Sessions our legal pot when he pries it from our warm, extremely interesting to look at hands.” The Democrats also said that marijuana taxes have paid for new roofs, emergency generators, and other renovations for schools in the state. They ended by suggesting that Sessions concentrate on corrupt politicians and white-collar crimes.

It is not yet clear how the U.S. Attorney plans to handle dispensaries in the state, as well as those legally in possession of marijuana. It is likely that officials will concentrate on the black market, but with the recent changes, anything is possible.