The Trump administration’s Department of Justice on Thursday rescinded a policy that discourages enforcement of federal marijuana laws – a move that sent shockwaves through California’s nascent marijuana industry.
In a memo sent to U.S. attorneys Thursday, Attorney General Jeff Sessions swept aside an advisory imposed by the Obama administration that silenced the marijuana enforcement efforts of the U.S. Department of Justice.
In California, where passage of Prop. 64 is moving a shadowy $7 billion industry into a taxed and highly regulated structure, Lt. Governor Gavin Newsom accused Sessions of “trampling on the will of California voters….California will stand together to pursue all legal, legislative and political options to protect its reforms and its rights as a state,” as it has on climate, environmental and immigration issues.
But federal prosecution and conviction could be harder, according to Bay Area legal experts.
“For California, it’s not a game-changer,” said Robert J. MacCoun, Professor of Law at Stanford Law School.
“But it sends two messages,” he added. “It sends a message to investors that this is a risky business and you ought to stay out of it. And it sends a message to the 42 states where it is not legal that ‘you might not want to take this on.’ ”
Sessions said prosecutors should use their own discretion, taking into consideration the department’s limited resources, the seriousness of the crime, and the deterrent effect that they could impose.
Calling it “the marijuana mess,” Sessions’ memo could create confusion in California, which has four U.S. attorneys in each district of the state, said Marsha Cohen, professor of law at UC Hastings College of the Law in San Francisco.
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“Will there be four different policies in California? Will Fresno be OK with marijuana but you get arrested in San Francisco?” she said. “It seems totally unfair for criminal justice system to be unclear.”
“They have left a lot of this stuff alone for an extremely long time. It just wasn’t worth it,” Cohen said. She added: “All these prosecutors are already awfully busy. They have no shortage of cases.”
Californians voted to legalize medical marijuana in 1996 and recreational marijuana in 2016.
A historic law permitting sales of both products took effect on Jan. 1 — creating the largest legal pot market in the country. Hundreds of businesses have received temporary licenses from the state.
The state took comfort in the Obama era’s so-called Cole Memo, written in 2013 by Deputy Attorney General James M. Cole, which basically asserts that weed businesses need not worry about federal prosecution as long as they comply with state law.
The four-page Cole Memo, granting federal attorneys a great degree of prosecutorial discretion as to how to use their crime-fighting resources, has been a critical document in the growth of the legal marijuana industry.
Thursday’s news sent tremors through the cannabis community. They asked: Could SWAT teams bust marijuana dispensaries and shut down the state’s proliferating high-tech cultivators?
But Stanford’s MacCoun notes that Sessions hasn’t actually changed policy. Marijuana was a Schedule I drug before, and it’s a Schedule I drug now, he said. The Cole memo was simply an advisory memos to federal prosecutors, he said.
“Federal prosecutors who wanted to be aggressive could have done so before, and could do so now,” said MacCoun.
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To decriminalize cannabis, Congress would have to instruct federal drug officials to re-schedule marijuana from a Schedule I to Schedule II drug — essentially, moving it out of the ranks of drugs like heroin and regulating it more like oxycodone.
The president’s position is unclear, but he seems to favor the medical, not recreational, use. In February 2016, as a candidate, Trump told FOX News: “By the way — medical marijuana, medical? I’m in favor of it a hundred percent.” At the 2016 Conservative Political Action Conference , Trump seemed critical of recreational marijuana in Colorado, saying “I think it’s bad. Medical marijuana is another thing, but I think it’s bad.”
But it takes more than a memo to win a conviction in court, especially if most people support its use, said Cohen. “Juries might say: ‘Are you kidding?’ ”
Meanwhile, the industry has become woven into the commercial fabric of the state. There are cannabis lobbyists in Sacramento and Silicon Valley’s venture capital firms have invested in the industry’s growth.
“It is a battle they could take on,” said MacCoun. “But it is not a battle that could easily win — and it could be very costly.”
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