When we look back on legal marijuana, 10…20…50 years down the line, it may be as a medicine, an age-restricted legal intoxicant, and the impetus of a state vs. federal government battle unseen before in the modern era. While speculation may be able to conjure more anxiety than anything else, the battle for legal marijuana — with Jeff Sessions as Attorney General — is poised to test the extent of State rights in our fine & friendly North American land parcel.
Who is Jeff Sessions?
Jefferson Beauregard Sessions III has a long history of opposing marijuana use, and at least we have that going for us — his behavior is somewhat predictable.
Sessions began his political career in Alabama, becoming a US Attorney in 1981. An attempt to become a federal judge as the US circuit court in 1986 failed, largely due to concerns and criticisms surrounding Mr. Session’s policy on civil rights, discrimination, and racial sensitivity. Having been in the US Senate since 1997, Sessions was known as one of the most conservative Senators in the US. He also did a brief stint as Alabama’s Attorney General post from 1995-1997, shortly predating his Senate tenure.
In his political life, Jeff Sessions has repeatedly voted against expanding civil rights (including in LGBTQ communities), has been in favor of stronger border policy, and several times over been in favor of increasing enforcement surrounding drug use. If this wasn’t enough of a record, Sessions is known to support the use of private prisons, civil forfeiture, and, in 2016, had been quoted as saying “good people don’t use marijuana” at a Senate Caucus for International Narcotics Control. After expressing disbelief at the Obama-era Department of Justice and enforcement of cannabis laws, Jeff Sessions as Attorney General is poised to see just how much administrative authority his position broadly wields.
What are the Attorney General & Department of Justice in Charge of?
The Department of Justice, headed by the Attorney General, is designated as the highest legal advisor in the US. With such a rank, the Attorney General can shift priorities in enforcement but is not able to produce laws. The Attorney General has broad authority to propose legislation, institute civil suits on claims of consumer protections, and redirect Justice department resources to increase or decrease prosecution and prison sentencing for criminal (including drug-related) offenses.
Is There Anything Shielding the Industry from Jeff Sessions?
Under the Obama Administration, the Department of Justice released two memorandum — the Cole and Ogden memos. While the scope of the two memos differ the principal behind them remains the same: the Department of Justice can issue guidelines to state level Justice Departments on how to proceed and where the enforcement priorities are in regard to marijuana enforcement.
The most recent of the memos, the Cole memo, lays out the places that enforcement of federal law on marijuana be prioritized. Things like youth impacts & access, engagement of criminal enterprise under the pretense of legal activity, interstate trafficking, violence, drugged driving, and environmental impacts of cannabis cultivation on public lands are prioritized under the memo, effectively conjuring a skeleton for recreational states to stand regulation and penalties upon.
The Rohrabacher-Farr Medical Cannabis Act was codified into law in 2014, a bipartisan congressional measure that prevents Department of Justice budgetary appropriations from being used to prosecute marijuana use by patients, sales and cultivation by business. While the Act protects medical markets from having swift action brought against them, the Justice Department has no such fiscal restriction for recreational, adult use markets such as those in Colorado, Washington, Oregon, or Alaska.
With four states having passed ballot measures allowing recreational sales in 2016, and an additional 17 states proposing recreational legislation soon thereafter, the growth potential has never seen such momentum.
Lawmakers, Industry Leaders on the Offensive
In late February, 2017 White House Press Secretary Sean Spicer renewed public and industry concerns over how the Department of Justice with Jeff Sessions at the helm would choose to deal with marijuana, saying the following at a press conference:
“So I think there’s a big difference between medical marijuana, which states have a — the states where it’s allowed, in accordance with the appropriations rider, have set forth a process to administer and regulate that usage, versus recreational marijuana. That’s a very, very different subject.” After another reporter circles the topic again, Spicer goes on to say “…I think that’s a question for the Department of Justice. I do believe that you’ll see greater enforcement of it. Because again, there’s a big difference between the medical use which Congress has, through an appropriations rider in 2014, made very clear what their intent was in terms of how the Department of Justice would handle that issue. That’s very different than the recreational use, which is something the Department of Justice I think will be further looking into.”
The Rohrabacher-Farr Medical Cannabis Act is the appropriations rider which Mr. Spicer is referring.
Following the press conference, renewed solidarity appeared among many of the states that voted and passed recreational legislation. Gavin Newsom, Governor of California, sent a letter out to both President Trump and Attorney General Jeff Sessions urging them to reconsider expanding enforcement of marijuana crimes in states where it is legal. While Newsom chose direct communication about this issue with the President, California has gone ahead and hired Eric Holder, the Obama-era Attorney General who instructed his deputies to send out the Cole memo.
In Washington state, Gov. Jay Inslee and Attorney General Bob Ferguson have each placed priorities in enforcing and protecting the laws and voices of Washington voters. After Mr. Spicer’s comments at the press conference, Ferguson was quoted as saying:
“I will resist any efforts by the Trump administration to undermine the will of the voters in Washington state”.
On the 15th of February, 2017, Inslee and Ferguson sent a letter to the recently-confirmed Attorney General Jeff Session. You can read it here.
Jeff Sessions – Crime, Prisons, and Accountability
“Most of you probably know I don’t think America is going to be a better place when more people of all ages and particularly young people start smoking pot. I believe it’s an unhealthy practice and current levels of THC in marijuana are very high compared to what they were a few years ago. We’re seeing real violence around that. Experts are telling me there’s more violence around marijuana than one would think and there’s big money involved.”
After lamenting over a failed supreme court case that the State of Nebraska brought against Colorado involving marijuana seeping across the border, Sessions continues:
“I’m definitely not a fan of expanded use of marijuana. States they can pass the laws they choose. I would just say it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”
Since becoming Attorney General, Sessions has cited increases in crime as a nationwide trend. He has breathed new life into federally funding private prisons, and, most recently, has taken a gloomy — though not unsurprising — view of the retail marijuana industry.
Despite all the excitement and momentum surrounding marijuana legalization, with 57% of Americans viewing legalization as the right policy to govern cannabis use in society, Jeff Sessions’ Department of Justice has the broad authority to reverse much of the industry as we know it.
I don’t think it will come as a sweeping reform, as such an action would shunt economic growth & stability, close businesses, contribute to unemployment, and a variety of other economic volatiles. It also comes down to DOJ resources. While the medical industry maintains protection under Rohrabacher-Farr, the retail industry has only the Cole memo to stand on. Recreational states are hedging their bets on the Department of Justice seeking to collect data that indicates how effectively the individual markets regulate per the Cole memos.
Jeff Sessions, if held back by nothing else, has the authority to appropriate federal funds to crack down on legal marijuana. The question remains: is it Federal priority with the resources?