On January 4, 2018, Attorney General Sessions issued a memo formally rescinding years of Department of Justice (DOJ) guidance, most notably the 2013 Cole Memorandum, that laid out the federal government’s effectively hands-off approach to state legalized marijuana. It will now be up to individual U.S. Attorneys in those states that have legalized marijuana to decide whether or not to enforce, and how to go about enforcing, federal marijuana laws. In taking this action, Sessions has done a grave disservice to the states that have legalized marijuana, the marijuana industry, and the U.S. Attorneys he is charged with leading.
Following the Sessions announcement, a DOJ official was quoted as saying that the message for federal prosecutors is that going forward they should approach marijuana cases “like all other cases.” But the fatal flaw in that message is the notion that marijuana cases are like all other cases. What other federally illegal activity has been able to operate openly and freely under the watchful eye of, and pursuant to policy guidance from, DOJ? Marijuana cases are unique precisely because DOJ treated them as such for 20 years.
DOJ’s role in state-legalized marijuana:
DOJ’s practice and policy of deference to state marijuana laws long pre-dates the Cole Memo. California was the first state to legalize medical marijuana in 1996, and the response from the Clinton DOJ amounted to a shrug of the shoulders. Other states soon followed suit and before long medical marijuana was an accepted fact of life in America, despite its conflict with federal law.