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Fate of legal marijuana up in air after Senate confirms Sen. Sessions as attorney general

UPDATED: Wed., Feb. 8, 2017, 10:30 p.m.

By the end of this week, Washington’s multimillion-dollar recreational marijuana industry may be targeted for a federal crackdown.

The confirmation of U.S. Sen. Jeff Sessions, R-Ala., as the next attorney general poses the greatest challenge to legalized recreational marijuana to date. The former federal prosecutor’s opinion about changing social attitudes toward pot is clear, with Sessions saying last year that “good people don’t smoke marijuana.”

“We need grown-ups in charge in Washington deciding that marijuana is not the thing that ought to be legalized,” he said in April 2016 at the Caucus on International Narcotics Control. “This drug is dangerous. You cannot play with it. It’s not funny.”

Spokane attorney Frank Cikutovich, who has represented many of the highest profile local defendants in federal marijuana crackdowns, said he takes Sessions at his word.

“He is of the opinion that it’s no good, it’s the devil drug,” Cikutovich said. “He could not be more clear about what his position is. Unfortunately, he has the power to … say from this moment, ‘We will start enforcing the federal law to the letter.’ ”

And that could put everyone involved in the production and sale of marijuana in federal legal trouble.

Some 56 percent of Washington state voters approved an initiative decriminalizing marijuana in 2012 and allowing a tightly regulated marketplace.

In the years since, business has flourished.

Spokane County marijuana retailers licensed by the state sold $74.1 million worth of legal weed in 2016, according to records published by the Washington Liquor and Cannabis Board.

Those sales generated $27.5 million in taxes collected by the state.

Colorado and Washington in 2012 passed the first laws in the nation that allowed recreational use of marijuana, although sales didn’t begin in the Evergreen State until 2014. That list now includes Oregon, California, Alaska and the District of Columbia. This past November, Nevada, Maine and Massachusetts passed similar laws and 28 states have legalized the use of medical marijuana.

However, the state-by-state move to legalize marijuana always has operated under an uneasy understanding with federal authorities. U.S. law still considers marijuana an illegal narcotic on par with methamphetamines, cocaine and heroin.

The industry spread after 2013 when the U.S. Department of Justice issued a memorandum declaring that it wouldn’t challenge states on marijuana legalization as long as they put in place safeguards to keep the drug out of the hands of minors and criminals.

Without federal government intervention, marijuana businesses have boomed. A recent report from ArcView Market Research, a cannabis industry research group, predicted that nationwide sales of legal marijuana could approach $22 billion by 2020. That would mean weed sales would outpace revenue generated from the National Football League.

Sam Calvert, owner and founder of Greenstar Cannabis on Division Street, was one of the first stores to open in Spokane County in 2014. He said he believes the industry has too much momentum for the new administration to swiftly dismantle it.

“If (Sessions) does decide to take an aggressive approach, terminate the situation through federal enforcement, they’re going to end up in court,” he said. “It doesn’t play into my decision-making right now. I consider it on the peripheral.”

Seattle attorney Douglas Hiatt, who also has defended several marijuana cases in Eastern Washington, called that “wishful thinking.”

“They can’t believe it’s going to be taken away. But I’ve seen it before,” Hiatt said. “The law is crystal clear and we’ve run out of arguments.”

Because Washington’s strict regulations require meticulous records for those who grow, warehouse and sell the legal marijuana, federal prosecutors would have all the evidence they need to shut down the industry and prosecute those business owners.

And most stores sell enough marijuana products to put owners in danger of harsh criminal penalties, including 10-year mandatory minimum sentences in federal prison.

“It’s like shooting fish in a barrel,” Hiatt said. “If people think they can’t roll this thing up, then they have another thing coming.”

Enforcement ‘is an ever-changing determination’

During his confirmation hearings last month, Sessions was asked whether he would continue to allow states to operate under the Cole memo, which essentially said the federal government would look the other way on marijuana in the states.

“If I am fortunate enough to be confirmed as attorney general, I will certainly review and evaluate those policies, including the original justifications for the memorandum, as well as any relevant data and how circumstances may have changed or how they may change in the future,” he wrote.

However, he noted that marijuana remains illegal under federal law and he committed to uphold the law “with respect to marijuana, although the exact balance of enforcement priorities is an ever-changing determination based on the circumstances and the resources available at the time,” he wrote.

That’s a softer stance than Sessions once held.

Some 30 years ago, Sessions said that he thought the Ku Klux Klan was “OK until I found out they smoked pot,” according to testimony given to Congress when he was nominated to be a federal judge.

He later said he was joking, but he remains among the sharpest critics of what he considers the dismantling of Nancy Reagan’s “Just Say No” anti-drug campaign of the 1980s.

“Colorado was one of the leading states that started the movement to suggest that marijuana is not dangerous,” Sessions said last April. “And we are going to find it, in my opinion, ripple throughout the entire American citizenry. And we are going to see more marijuana use and it’s not going to be good.”

A group empaneled to advise Sessions and the Trump administration on the marijuana issue includes 14 prosecutors named by the National District Attorney’s Association. One of them is Boulder, Colorado, District Attorney Stan Garnett.

At their first meeting, some of the district attorneys wanted to send letters to governors of states that have approved medical marijuana, telling them to shut those businesses down within 90 days, Garnett told the Boulder Daily Camera last week.

Garnett said he advised his fellow prosecutors against that move, saying it failed to respect the importance of local and state control.

“I thought that was a particularly unrealistic and ill-advised idea,” Garnett told the Daily Camera. “Legalization has been largely successful everywhere it has been tried, so it would be a highly unpopular move and difficult to accomplish successfully.”

‘Marijuana can go back underground’

If the federal government takes a new, hard line on marijuana enforcement, individual users would have little to worry about, Cikutovich said.

“The government doesn’t have the resources to go after millions of people,” he said. “But the people in the industry need to be very concerned. They have to be ready to parachute out of the industry immediately if it changes.”

A federal enforcement agent, who spoke only on the condition of anonymity, said he wouldn’t expect immediate raids if the Trump administration decides to go after the marijuana businesses.

In 2011, local federal authorities cracked down on medical marijuana dispensaries by sending them and their landlords letters warning of future legal action if they continued. Four of those businesses continued and their owners were indicted.

Sessions “may have huge issues with marijuana, and he may share that,” the law enforcement source said. “But how he would then change the enforcement priorities of the department is purely speculative at this point.”

Seattle attorney Jeffrey Steinborn, who like Cikutovich and Hiatt has worked for years to defend marijuana clients, said the success of the industry may be its best defense. And legal marijuana’s best ally may be President Trump, who said during the campaign that marijuana legalization should be left to the states.

“I really think we should study Colorado and see what’s happening,” Trump told a crowd on Oct. 29, 2015. “I think in terms of marijuana and legalization, it should be a state issue, state by state.”

But if Sessions persuades his boss to turn back the clock to the drug wars of the Reagan era, the industry will adapt, Steinborn said.

“Marijuana can go back underground in the blink of an eye,” he said. “And it will if it has to, because it ain’t going away.”

Spokesman-Review Reporter Kip Hill contributed to this report.