It has been over a year since Donald Trump was elected President. Ever since the 2016 presidential election all of us involved in the legal marijuana business have been holding our breath waiting to see if the feds would take enforcement action against licensed marijuana businesses in Washington, Colorado, Oregon and other states that have legalized the use and sale of marijuana.
We may be able to breathe a sigh of relief, however. A few weeks ago, as first reported by Tom Angell in Forbes, Attorney General Jeff Sessions, during a House Judiciary Committee Oversight Hearing, stated “[o]ur policy is the same, really, fundamentally as the Holder-Lynch policy, which is that the federal law remains in effect and a state can legalize marijuana for its law enforcement purposes but it still remains illegal with regard to federal purposes.”
The Holder-Lynch policy relied on the Cole Memorandum, which provides that the federal government will take a hands-off approach in regard to the enforcement of marijuana laws in states that abide by certain priorities. These priorities include keeping marijuana out of the hands of minors, preventing diversion of marijuana to other states, and keeping organized crime out of the legal market. Washington State’s regulatory scheme for marijuana incorporates and emphasizes these policies.
Earlier this year, Sessions had asked the Justice Department Task Force to review the Cole Memorandum to recommend changes to the Holder-Lynch policy. The Task Force’s report was never made public, but according to AP reports, the Task Force failed to provide any new policy recommendations to Sessions that would advance federal marijuana enforcement efforts. Instead the Task Force recommended maintaining the status quo. So it seems at least for now, Sessions is unlikely to prosecute marijuana business owners complying with state law.
While this is good news for marijuana business owners, we shouldn’t overlook the fact that Sessions is slowly undoing many of the Obama era achievements in criminal justice progress. For example, Sessions has rescinded an Obama Administration memorandum providing guidance to phase out the federal justice system’s use of private prisons and Sessions has empowered U.S. attorneys to seek out the harshest penalties for drug crimes. Reactivating the war on drugs and mass incarceration still appear to be high on Session’s agenda.
Although legal marijuana business owners may be able to rely on status quo for now, we will likely have to wait for another administration for any improvements to happen in regard to rescheduling marijuana as federal controlled substance and anything to change on the banking front. In the meantime, Washington and other states that have legalized marijuana will continue on their successful legalization path.
*Since this post was published, Jeff Sessions stated that his department is currently undertaking review of the Cole Memo. Some are interpreting this as meaning that a possible crackdown on legal marijuana businesses may be imminent. But given Sessions’ waffling on this issue, it really is hard to tell what he intends in regard to enforcement of federal marijuana laws. Stay tuned to this blog for updates on new developments in the federal enforcement of marijuana laws.
For more information on the regulation of marijuana businesses in Washington State, please contact Heather Wolf.