In well over half of U.S. states today, some form of cannabis consumption has been legalized, but federal law remains unmoved. Despite the abundance of state laws encouraging and responsibly regulating the growth of the American cannabis industry, every aspect of the field is still fully and totally illegal at the federal level. This paradox has been allowed to endure in no small part because of one Department of Justice memo — and as of January 4th, Attorney General Jeff Sessions officially rescinded it and its tenuous protections.
The memo in question was written in 2011 and known as the Cole Memorandum. Named after its author, then-Deputy Attorney General James M. Cole, it was essentially a cheat sheet outlining how the states and the cannabis enterprises within their respective borders could avoid federal prosecution. Without ever contradicting federal law outright, it strongly implies that as long as the states are serious about regulation and businesses are in compliance with state law, the Department of Justice will have little incentive to go after them. Additionally, the memo suggests that it would be in the best interest of law enforcement and federal prosecutors nationwide to take the DOJ’s priorities into account.
In addition to rescinding the Cole Memorandum last month, Sessions rescinded all prior DOJ guidance for federal prosecutors concerning marijuana, citing “the Department’s well-established general principles” as a clear enough directive. These now-rescinded memos include, among others, the Ogden Memorandum, a precursor to the Cole Memorandum, as well as an additional memo by Cole that implied a measure of protection for banks working with regulated cannabis businesses. (The protections for medical marijuana businesses and users currently ensured by the Rohrabacher-Blumenauer Amendment have remained untouched, since they were passed by the legislature, although the amendment is set to expire on February 8th if Congress does not re-approve it).
This move was certainly a blow to the semblance of legal security cannabis businesses nationwide were just beginning to enjoy, but on a practical level, it has so far changed very little. The federal status of cannabis has remained unchanged, and the state laws legalizing it have remained, for the moment, unchallenged. Sessions has certainly made no secret of his intolerance for marijuana legalization of any kind, and the longevity of the Cole Memorandum was in question from the moment he was confirmed.
However, Sessions’ actions are about more than just immediate, concrete impact — and, as Politico points out, the real purpose of this recent memo may well be an attempt to destabilize the industry by intentionally obscuring the DOJ’s priorities. The DOJ’s “well-established general principles” may be apparent according to Sessions, but what that actually means for day-to-day enforcement is anything but obvious, and the way fo
rward for cannabis businesses and consumers across the country is anything but certain.