THE REPEAL OF PROTECTION
The rumors are true. Attorney General Jefferson Sessions has repealed the Cole Memo, a priority guidance memorandum concerning federal priorities as it pertains to marijuana.
The Cole Memo has been discussed on this blog before. Essentially, it is a note from former federal attorney general James Cole, written in 2013, stating that prosecutors and law enforcement should focus on eight aspects of legal marijuana, including selling to minors, distribution across state lines, and preventing revenue streams to drug cartels. Therefore, as long as the state marijuana laws are drafted with the eight principals in mind, federal enforcement was directed not to focus federal recourses on state-licensed operations.
The Cole Memo was never a safe harbor, but rather was to be used as enforcement guidance. There was always the possibility that federal enforcement could become an issue for the recreational marijuana industry. The general thought has been that if you are operating under the regulations of the state and the state system meets the eight principals of the Cole Memo, the risk of federal enforcement was very small. However, state-licensed marijuana operations may be in jeopardy after this latest move by Sessions.
The Sessions memo directs federal prosecutors, when deciding which cases to prosecute, “to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
Sessions has essentially replaced the eight factors of the Cole Memo with four new factors for us to consider. Let’s unpack these:
1. PROSECUTION PRIORITY
The Attorney General’s drug enforcement priority should be on the opioid crisis. The problem with that is the Trump administration has been trying to link the opioid crisis and marijuana since last February, when Sean Spicer’s comments gathered national attention. The building blocks to link the two have been set, allowing the attorney general to shift its attention to marijuana without upsetting the status quo.
2. THE SERIOUSNESS OF THE CRIME
I believe the seriousness of the crime has to be looked at holistically, not just at marijuana. I don’t believe that involvement in the marijuana industry alone is enough to be put into the “serious crime” category. The question very well may be—within the marijuana world—what is a serious crime? This would be things like selling across state lines, black market involvement, links to drug cartels.
3. THE DETERRENT EFFECT
Prosecuting a recreational marijuana producer, processor or retail operation is not going to deter the thousands of others who are out there, nor is it going to deter the states that have legalized its production and use. On the other hand, prosecuting an operation which is selling its crop to the black market may have an impactful deterrent effect on those who still operate in the gray or black areas.
4. COMMUNITY IMPACT
The cumulative effect of the particular crime on the community may link back to how Sessions and the Trump Administration have been attempting to link marijuana to other hot topics, like the health of our children. In an article posted on The Hill this morning, a marijuana-related amendment, the Rohrabacher/Leahy Amendment, is announced to be “detrimental to public health”. This fourth factor may be a catchall tool for federal prosecutors, allowing them to reach further into the marijuana population.
So, what now?
It may be timely to have a documented compliance meeting with all employees that goes over your operation's compliance measures and how you could improve that system as it pertains to staying within the rules and regulations of the state. Having regularly scheduled compliance meetings, documented in the file, could substantiate your efforts to operate above-board.
Today could mark a new era in the legal marijuana industry, or it could be a return of federal enforcement to the position it was in 2013, prior to the Cole Memo — a period in which Washington’s unregulated medical marijuana system saw very little prosecution.
Washington and Oregon’s attorney generals have been vocal in their opposition to any federal presence in their state’s industry. We may see that promise come to fruition after today’s announcements.