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Federal prosecutors may target cannabis in areas where it’s legal

On behalf of Dolan + Zimmerman LLP January 4, 2018

U.S. Attorney General Jeff Sessions has signaled that federal prosecutors may be about to crack down on marijuana use in states and jurisdictions where it has been legalized. Possession and distribution of cannabis remains illegal under federal law, but the previous administration had adopted a hands-off approach when dealing with the drug in Colorado and other legalization states.

Sessions issued a memo to U.S. Attorneys, who prosecute federal crimes, indicating that enforcement of the federal marijuana laws might be a priority for the Trump administration.

“In the Controlled Substances Act, Congress has generally prohibited the cultivation, distribution and possession of marijuana….It has established significant penalties for these crimes,” the memo reads, adding that marijuana activity is also the basis for prosecution under money laundering and other statutes which, Sessions wrote, “reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”

Calling Sessions’ action “a return to the rule of law,” the memo rescinded all previous policy guidance on the issue, including Obama-era guidance encouraging U.S. Attorneys to avoid prosecuting possession and distribution when it takes place in a legal, regulated context.

It went on to give direction to U.S. Attorneys on how to determine when to prosecute crimes related to marijuana, telling them 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
  • “The cumulative impact of particular crimes on the community”

The memo falls short of actually stating that marijuana enforcement in legalization states is a priority set by the Attorney General. However, context suggests that federal prosecutors will likely not be welcome to discount marijuana offenses as non-serious.

Senator Gardner accuses Sessions of trampling on the will of voters

U.S. Senator Cory Gardner of Colorado reacted angrily to Sessions’ memo, according to the Associated Press. In a tweet, Gardner said that the Justice Department “has trampled on the will of the voters” in jurisdictions that have legalized.

He also said that Sessions, prior to his confirmation as attorney general, had made a commitment not to interfere with legalization efforts. The Senator said he would “take all steps necessary” to pressure Sessions “until the Attorney General lives up to the commitment he made to me prior to his confirmation.”

If you are charged with a federal marijuana crime, we urge you to hire experienced criminal defense counsel immediately.