DOJ’s Announcement on Federal Marijuana Enforcement Priorities – What Does It Really Mean?

Recently, the United States Department of Justice released a new memo by Deputy Attorney General James M. Cole, offering guidance to U.S. Attorneys nationwide on when, how, and whether to use their resources to go after those in the medical cannabis industry and those who will be in the recreational marijuana industries in Colorado and Washington in the near future. Coming along with the memo is the news that today, Attorney General Eric Holder had a conference call with the governors of Washington and Colorado. During that call, Holder told the governors that the DOJ was willing to let the tax-and-regulate schemes for recreational marijuana in those states go forward – for the moment. Holder said that the DOJ would wait and see what happens, reserving the right to take the states to court if the DOJ feels the schemes are not working, i.e., if the schemes conflict with the federal policy set forth in the new Cole memo.

Before discussing what the memo means, let’s break it down.

• Unlike the memos previously issued by the DOJ that addressed medical marijuana only, this one addresses medical and recreational marijuana schemes.
• The DOJ maintains that marijuana is illegal for all purposes under federal law.
• The DOJ is committed to the following enforcement priorities, vis-à-vis marijuana:
  • No distributing – or trying, suggesting, or implying distributing – marijuana to minors
  • Gangs, drug cartels, and “criminal enterprises” cannot sell marijuana or be funded by marijuana sales
  • No moving marijuana from states where it is legal to states where it is not (and presumably, no moving marijuana over state lines, even between legal states)
  • No involvement with other drugs or other illegal activity
  • No violence and no guns used in the cultivation and distribution of marijuana
  • “Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use”
  • No growing marijuana on public lands
  • No possession or use of marijuana on federal property
• The DOJ will allow regulatory schemes to go forward in medical and recreational marijuana states, so long as these schemes in and of themselves do not interfere with these priorities. Further, the DOJ expects that these states “will implement strong and effective regulatory and enforcement systems” that will minimize all harm to the public and other law enforcement interests. These systems cannot just look good on paper; they have to be vigorous and effective in reality. Further, these robust systems should work hard to prevent unregulated sales of marijuana within the state. Similarly, revenues should be “tracked and accounted for.”
• If a state fails to have or to enforce a robust system, or federal priorities are threatened by the state’s marijuana laws, “the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.” In English, the DOJ is reserving the right to target and prosecute not only individuals whom they feel threaten federal priorities, but also to take the states and their schemes to court, likely arguing federal preemption, if the DOJ feels the schemes do not work.
• No longer should U.S. Attorneys prosecute individuals who are participating in the commercial, state-legal marijuana industry, based SOLELY on the fact that the individual is running or part of a large operation, or a profitable – or supposedly profitable, not-for-profit ones (please note: California law requires that medical marijuana collectives be not-for-profit; this announcement does not change that). In sum, the memo suggests that the feds should not rely on the amorphous justification that the operation is just “too big” or makes “too much” as the sole factor to justify a federal prosecution. BUT, and it’s a big but, these are factors that federal prosecutors can consider when deciding whether an individual case endangers the eight federal priorities outlined above. Indeed, prosecutors “should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence…The primary question in all cases – and in all jurisdictions – should be whether the conduct at issue implicates one or more of the enforcement priorities listed [in this memo].”
• The memo ends by stating that the memo is just guidance, not law, does not create a defense in civil or criminal court, does not create any rights, procedural or substantive, does not give anyone currently facing a case or who just had a case a basis for reconsideration, etc.

So, what does it all mean? It’s good news. It’s very good news. Of course, policy in action can be – and usually is – very different than policy on paper. And, this memo gives federal prosecutors plenty of room to justify federal prosecutions of those in state-legal medical marijuana and recreational marijuana industries. But, the memo goes further towards creating a safe space for larger operations than the past memos. That is a big change in policy on paper.

The memo states that federal prosecutors should not target individuals or operations based solely on being big, or on having a lot of revenue. In sum, the memo suggests that a large operation that scrupulously complies with rigorous state regulations – and does not run afoul of any of these federal priorities – would not be a target for federal prosecution. That is a lot of conditions, but it is progress. It suggests that the federal government entertains the idea that such a system – commercial production and sale of medical or recreational marijuana within a state – could exist, and be left alone.

At the same time, policy-in-action could be very different. If history is any guide, it will be, at least at times. Further, while size and revenue should no longer be the sole factor for a federal prosecution, according to this memo, they are valid factors for federal prosecutors to consider when evaluating cases to decide if they endanger the eight, broad federal priorities listed in the memo.

As for those priorities, the ones that offer federal prosecutors the most wiggle room are “criminal enterprises,” adverse health consequences, and minors. While the memo lists criminal enterprises alongside cartels and gangs, a criminal enterprise can conceivably be any group of people, scheme, or individual who executes a plan to break federal law. More likely, the memo does not envision that everyone engaged in state-legal marijuana industries is engaged in a criminal enterprise. But, it does create room for an overzealous federal prosecutor to go after someone or something she does not like, including something that is too big, too gaudy, too overt, too loud, too successful, too…something.

As for adverse health consequences, that is also broad. A cynical take is that the DOJ is leaving room to step in if they feel a state-legal marijuana business is too…something. More likely, the DOJ is carving out room to step in if they feel, correctly or not, that regulated access to marijuana is creating a major public nuisance, such as skyrocketing rates of youth using marijuana or a massive surge in drugged driving.

As for no sales to minors, the memo leaves room to go after medical marijuana and recreational operations that sell to those under age twenty-one. The recreational schemes planned in Colorado and Washington are explicitly for consumers who are twenty-one and older (of course, the federal government could step in if those under twenty-one are getting recreational marijuana through the state’s regulated scheme, directly or indirectly). It is medical marijuana that leaves wiggle room for the federal government. The public is more and more aware of the children – including little children – who rely on cannabis for devastating illnesses. One such medical marijuana patient is six-year-old Charlotte Figi, who lives in Colorado. Figi was the centerpiece of Dr. Sanjay Gupta‘s recent CNN documentary, Weed. Figi began having near constant seizures when she was three-months-old, and was ultimately diagnosed with Dravet Syndrome. Her parents tried everything, and nothing worked…until cannabis. While one hopes that with this memo, the DOJ means that they do not want minors having easy access to marijuana, the memo leaves open the possibility that the federal government could prosecute a state-legal, scrupulous individual or enterprise that assisted a suffering child such as Charlotte Figi.

Also giving the DOJ wiggle room to support federal prosecutions is the breadth and generality of these priorities. Some are fairly simple – no growing on public land, for example – but others could be construed to justify numerous prosecutions. The memo itself concedes that the priorities are broad. As an example, the memo explains that the no-marijuana-for-minors priority does not cover just selling marijuana to minors, but also covers marijuana sales occurring “near an area associated with minors”, marketing that appeals to minors, and “when marijuana is being diverted, directly or indirectly, and purposefully or otherwise, to minors.” Such broad language could mean that if a state-legal dispensary sells medical marijuana to a member, the member’s teenage son steals the medicine without the member’s knowledge, and gives it to someone at school, or consumes it himself, the dispensary could face federal prosecution. That is a drawn-out, unlikely scenario. But, much wiggle room remains in nearly all of the eight priorities in the memo.

Another foundation of the memo is the condition that this country’s twenty medical-marijuana states, two recreational-marijuana states (which, of course, are also medical marijuana states), and D.C.’s medical marijuana program have vigorous, tightly regulated schemes both on paper and in practice. And of course, vigorous and tightly regulated is in the eye of the beholder, i.e. the federal government. Indeed, the memo makes clear that the DOJ reserves the right to judge the schemes for itself – and threatens the nuclear option. The nuclear option is taking a state’s scheme to court and arguing federal preemption. Also, even if the DOJ deems a state’s system sufficiently robust on paper and in practice, the DOJ leaves the door open to go after anyone who fails to comply sufficiently, in reality or in the eye of the DOJ, with the a state’s scheme.

How will California fare in the eye of the DOJ? That is not clear. California does not have a comprehensive statewide regulatory scheme for medical cannabis. Rather, the state is a crazy quilt of some local regulations, different enforcement policies that vary widely by municipality and law enforcement agency, and of course, bans. That is the reality; the perception about California’s medical marijuana scheme within and without the state is often worse. In truth, the majority of people in California’s medical marijuana industry are trying desperately hard to comply with state law and avoid any clash with federal priorities, only to find that the law is gray and federal priorities change. Yet, the memo would suggest that the federal government will likely scale back its devastating enforcement efforts of the past nearly-two years.

One important matter unaddressed by the memo is asset forfeiture. Specifically, will the federal government continue to threaten numerous landlords in California and other states who rent to marijuana businesses? Will they continue to file forfeiture lawsuits? Will they halt those currently occurring? It is too early to tell, though the next several months should offer answers. Most likely, if asked, a DOJ spokesperson would say that deciding on forfeiture lawsuits against landlords depends on whether the individual forfeiture lawsuit serves the eight enforcement priorities set forth in the new memo. That does not clarify much. And yet, most likely conditions will improve for landlords. The memo does say that size of an operation or scheme should not be the sole factor to justify federal action. Thus, it would seem that landlords could rent to state-legal, compliant, regulated dispensaries or other marijuana operations with greater peace of mind than they could a few weeks ago.

As for the last big question – why this memo now? – the DOJ did not say. The fact that the memo comes on the same day as Attorney General Holder’s conference call with the governors of Washington and Colorado suggests that those statewide ballot initiatives, and the coming implementation of schemes to tax and regulate recreational marijuana in those states, were the main reason for this memo. In sum, the DOJ decided that it does not want to take Colorado and Washington to court and argue federal preemption at this time.

Another factor could be the upcoming hearings scheduled by Senator Patrick Leahy for September 10, 2013. In those hearings, Leahy planned to discuss whether the federal government should take action in medical and recreational marijuana states, given changing public opinion, new state laws, and the federal budget crisis. Some believe that the DOJ wanted to cut Leahy off at the pass, and avoid a public drumming for outdated policies and waste of public funds. Others wonder if the DOJ has changed its marijuana policy to take out at the knees any movement in Congress, or public outcry, to change federal law that could come out of the Leahy hearings.

Another theory is the DOJ has to change its policy, because the world has already changed. Twenty states and D.C. have medical marijuana laws. Two states will soon offer taxed and regulated recreational marijuana. More and more research, commentators, and public polls support medical marijuana and legalizing recreational marijuana. In sum, the change – the old view that marijuana is a dangerous, destructive drug at all times and in all cases – is outdated, incorrect, and dead wrong.

California marijuana laws change frequently. For updated information, see the following pages: Medicinal Uses of Marijuana and Recreational Marijuana Business