Attorney General Jeff Sessions has rescinded the Obama-era policy that paved the way for states to legalize marijuana, creating new confusion about federal enforcement at a time when the recreational pot industry is flourishing across the country and a majority of Americans support legalization.
In a memo sent to U.S. attorneys on Thursday, Sessions noted that federal law prohibits the possession and sale of marijuana, and he scrapped previous memos directing prosecutors to use leniency in states that have legalized the drug. Sessions said prosecutors should use their own discretion in weighing whether charges are appropriate, taking into consideration the seriousness of the crime, the potential deterrent effect of prosecution and the Justice Department’s limited resources.
In a statement, Sessions said he directed U.S. attorneys “to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”
The decision, first reported by the Associated Press, could lead to a federal crackdown on state-licensed marijuana businesses, although the precise impact remains to be seen. Washington Gov. Jay Inslee and Attorney General Bob Ferguson vowed Thursday to defend the will of voters who passed Initiative 502, as well as the highly regulated market that supplies the state with millions of tax dollars.
“The one good thing coming out of this administration is that the states are beginning to act on their own,” said Josh Wleklinski, manager of The Vault, a cannabis retailer on Spokane’s South Hill. “The state said it’s sticking to its guns, so I’m not worried.”
Wleklinski said he doesn’t believe Sessions’ decision will have any effect on local businesses, in part because federal prosecutors lack the resources to shut down every one of them.
Eight states and Washington, D.C., now have laws allowing for recreational pot consumption, and many more permit its use for medical purposes. Recreational stores in California opened just days ago.
“I think what they’re trying to do is stop other states from making the leap,” Wleklinski said.
Sessions’ memo overrides a 2013 memo written by then-Deputy Attorney General James M. Cole, which said the federal government would not stand in the way of states that legalize marijuana, so long as officials acted to keep it from migrating to places where it remained outlawed and keep it out of the hands of criminal gangs and children.
Chris Marr, a former state senator from Spokane who now works as a marijuana industry consultant, said even though the Cole memo is void, states that continue following its guidelines might face little federal resistance.
“I’m not sure that it necessarily changes a whole lot,” Marr said of Session’s decision. “I think those states that have been compliant … are probably not going to be high on the list in terms of federal enforcement.”
Kevin Oliver, the co-owner of a pot farm in Deer Park and executive director of the Washington chapter of the National Organization for the Reform of Marijuana Laws, said he wasn’t “losing any sleep” over Sessions’ announcement.
“If they decide to prosecute somebody like me, it would be a very interesting case,” Oliver said. “Why wouldn’t they be going after the state itself?”
Rescinding the Cole memo allows the Trump administration to talk tough on pot, Oliver said, but also take credit if the booming marijuana industry continues to grow. If the industry continues to generate tax dollars while federal prosecutors also tout victories over businesses operating outside of state law, the president would be able to say it happened on his watch, Oliver said.
“I don’t necessarily see it as a negative for people that are following the law within states that have enacted adult-use marijuana, or medical marijuana,” he said.
Not everyone took the decision in stride.
“It’s a huge deal, because now they can come after anyone,” said Aaron Juhl, the owner of Funky Farms, a growing operation in Deer Park. “We wake up every day with a pit in our stomach.”
Juhl and Kim Hoff, the owner of Flying High, another farm in Otis Orchards, showed up Thursday to testify against unrelated regulations stemming from odor complaints against growers in the region. Both said Sessions’ decision stokes their fears that federal authorities might appear one day to shut down their sources of livelihood.
“When I show up in the morning, they could be standing there with a chipper/shredder,” Hoff said. “We live in fear, every one of us in this industry.”
Frank Cikutovich, a Spokane attorney who represented one of the “Kettle Falls Five” medical marijuana growers, said the policy change would invite federal prosecutors to blanket marijuana businesses with cease-and-desist letters – or take more heavy-handed enforcement actions of their choosing.
“It’s extremely concerning to me,” Cikutovich said. “It gives U.S. attorneys discretion to go after marijuana however they want to. Next Monday they could go to every 502 shop in Spokane and indict the owners.”
There are 93 U.S. attorney posts across the country. President Donald Trump has nominated 58 people for those jobs, and 46 have been confirmed by the Senate. On Wednesday, Sessions appointed 17 more to serve on an interim basis, including Joseph Harrington for the Eastern District of Washington, which encompasses the state east of the Cascade Mountains.
Cikutovich said he’s known Harrington for 20 years and regards him as a professional. But he said he has “no idea” how Harrington will treat the marijuana issue.
“We’ve got millions of tax dollars coming into the state, and I think he’s smart enough to realize that,” Cikutovich said.
On Thursday afternoon, The Spokesman-Review asked Harrington in an email if his office might take action against state-licensed marijuana businesses. His secretary responded and referred questions to a Justice Department spokesperson in Washington, D.C.
Sessions, who has assailed marijuana as comparable to heroin and has blamed it for spikes in violence, had been expected to ramp up enforcement. Marijuana advocates argue that legalizing the drug eliminates the need for a black market and would likely reduce violence, since criminals would no longer control the marijuana trade.
Threats of a federal crackdown have united liberals who object to the human costs of a war on pot with conservatives who see it as a states’ rights issue. Some in law enforcement support a tougher approach, but a bipartisan group of senators in March urged Sessions to uphold existing marijuana policy. Others in Congress have been seeking ways to protect and promote legal pot businesses.
Marijuana advocates quickly condemned Sessions’ move as a return to outdated drug-war policies that unduly affected minorities.
Sessions “wants to maintain a system that has led to tremendous injustice … and that has wasted federal resources on a huge scale,” said Maria McFarland Sanchez-Moreno, executive director of the Drug Policy Alliance. “If Sessions thinks that makes sense in terms of prosecutorial priorities, he is in a very bizarre ideological state, or a deeply problematic one.”
The change also reflects yet another way in which Sessions, who served as a federal prosecutor at the height of the drug war in Mobile, Alabama, has reversed Obama-era criminal justice policies that aimed to ease overcrowding in federal prisons and contributed to a rethinking of how drug criminals were prosecuted and sentenced.
While his Democratic predecessor, Eric Holder, told federal prosecutors to avoid seeking long mandatory minimum sentences when charging certain lower-level drug offenders, for example, Sessions issued an order demanding the opposite, telling them to pursue the most serious charges possible against most suspects.
Spokane City Council President Ben Stuckart, who has supported the rights of retailers to sell marijuana downtown, panned Sessions’ decision, noting that a majority of people in Spokane and Washington approve of legalization.
“I think people use states’ rights, and local control, when it’s convenient for them,” Stuckart said. “I don’t want to see our jails filled with people (put there) for marijuana. I want to have local control.”
Wleklinski said the 71-year-old Sessions holds outdated and wildly distorted views about marijuana, like those depicted in the 1936 propaganda film “Reefer Madness.”
“Sessions is an old fuddy-duddy and he needs to get out of office, as far as I’m concerned,” Wleklinski said.
The Associated Press contributed to this report.