The timing seemed ironic, if not intentional, when Attorney General Jeff Sessions rescinded an Obama-era policy on Thursday that had generally instructed federal prosecutors to leave legal marijuana businesses operating within the bounds of state law alone. In California, home to a booming cannabis industry that rapidly expanded during the Obama administration, a ballot initiative legalizing recreational cannabis sales had just gone into effect on January 1. Sessions' decision to ditch the policy, which was laid out in a 2013 guidance known as the Cole Memo, cast a cloud of legal uncertainty across the state.
However, the timing was perfect for a bipartisan group of lawmakers from states with legally regulated weed. Congress faces a January 19 deadline to pass a federal budget, and they say the mounting political backlash generated by Sessions' move is just what they need to ensure the bill is passed along with two amendments that would bar the Justice Department from using federal funds to interfere with medical and recreational marijuana businesses that abide by state law. Sessions told Congress he opposes such provisions in a letter last year.
"Even the more reluctant members [of Congress] will say this is a bad decision and join us in our efforts moving forward," said Rep. Barbara Lee (D-California), during a Thursday press call with other lawmakers from states where voters have legalized recreational pot, including Nevada, Colorado and Oregon.
Voters are clearly on these lawmakers' side, and not just in states where recreational weed was legalized by voter referendum. A recent Gallup poll shows marijuana legalization is now supported by 64 percent of voters nationwide -- including 51 percent of Republicans.
Rep. Earl Blumenauer said the move was "perhaps one of the stupidest decisions the attorney general ever made."
Rep. Dana Rohrabacher, a Republican from California, said on the press call that Sessions' decision to rescind the Cole Memo was a "wakeup call" that would "mobilize people throughout the country" to support legislation protecting legalized states from a federal crackdown. Rep. Earl Blumenauer (D-Oregon) said the move was "perhaps one of the stupidest decisions the attorney general ever made."
"One wonders if Trump was consulted -- it is Jeff Sessions after all -- because this would violate his campaign promise not to interfere with state marijuana laws," Blumenauer said in a statement.
Congress could put the issue to rest tomorrow by ending federal prohibition, but don't expect the GOP majority to legalize weed before the midterms. Instead, reformers like Rohrabacher and Blumenauer want to protect state-level legalization from federal interference. Framing marijuana as a "states' rights" issue is easier for Republicans with socially conservative constituents to stomach, and 73 percent of voters oppose enforcement of federal prohibition in legalized states. This means marijuana regulation and decriminalization will likely continue to be decided on a state-by-state basis, at least for now.
Why Did Sessions Do It?
Sessions clearly dislikes marijuana, but systematic federal raids on peaceful neighborhood clinics and dispensaries would enrage voters and create a public relations nightmare for an administration already dealing with plenty of snafus. The Justice Department doesn't have enough resources to dismantle a booming, multi-billion dollar industry anyway. So, what exactly is Sessions trying to do by rescinding the Obama-era policy?
The Cole Memo gave the legal marijuana industry confidence to expand and generate tax revenue for several states, so it's possible that Sessions is retaliating against lawmakers like Lee and Rohrabacher who are working to withhold funding for marijuana enforcement from the Justice Department. The attorney general may also be encouraging cops to make more arrests. Marijuana is widely used and ubiquitous, so its prohibition gives law enforcement power over millions of people.
From day one, Sessions has sought to empower law enforcement after what he saw as years of disparagement under the Obama administration, when the Justice Department entered into consent decrees with major police forces after the country rose up against the extrajudicial killings of Black people. Sessions and Trump have also given new life to the war on drugs by making bogeymen out of Latin American gangs and international drug cartels in their effort to rally nationalist support around crackdowns on immigration and small crimes.
Sessions' own memo nixing the Cole Memo signals to federal prosecutors that their boss has no problem with busts on legal weed businesses, particularly if they reflect his own "enforcement priorities."
Marijuana prohibition gives law enforcement power over millions of people.
Sessions has said he suspects that "dangerous drug traffickers" are using state legalization as cover for black market operations. He wants cops to have all the "tools" they need to go after "large-scale distributors," as White House Press Secretary Sarah Huckabee Sanders put it last week.
The Cole Memo did not remove marijuana sales from the grips of the prison industrial complex; it instructed prosecutors to prevent sales to minors and pursue loosely defined "criminal gangs" capitalizing on legalized markets. Unsurprisingly, the number of youth of color arrested for marijuana in Colorado has risen dramatically since pot was legalized. Cops have long used marijuana as an excuse to profile and arrest young men of color for simply being out in public, so we can easily imagine how Sessions' policy provides a new "tool" for the police.
Under Sessions' policy, federal prosecutors do not need any actual evidence to raid a legal marijuana business suspected to have ties to -- or even information about -- some apparent illegal activity, because marijuana possession alone is illegal under federal law. Investigators could even arrest individual consumers and use the threat of federal drug charges to extract information unrelated to marijuana, such as the whereabouts of undocumented immigrants.
This is a real threat to those who use marijuana or work in and around the industry, particularly members of low-income communities and people of color, who have long been disproportionately targeted for drug crimes. Some federal prosecutors have already pledged not to interfere with legal weed businesses following state laws, but it's unclear how each individual prosecutor will interpret Sessions' policy.
Cops have long used marijuana as an excuse to profile and arrest young men of color for simply being out in public.
There are 93 US attorneys of varying political stripes serving districts across the country, and Sessions used his executive authority to name 17 interim US attorneys a day before rescinding the Cole Memo.
"This change will allow any US attorney who is looking to make a name for themselves to take unilateral action, thus depriving any semblance of certainty for state-lawful consumers or businesses moving forward," said Justin Strekal, the political director of the National Organization for the Reform of Marijuana Laws, in a statement.
Congress Poised to Act on Marijuana
Sessions has already rolled back restrictions on civil asset forfeiture, the unpopular police practice of seizing personal property and assets from those suspected of crimes, even if they have not been charged. In the past, police departments have used civil asset forfeiture to pad their coffers with extra cash and equipment. Without the Cole Memo, lawmakers fear local police now have a perverse incentive to work with federal prosecutors to raid marijuana businesses, which often keep large amounts of cash on hand because banks refuse to work with them due to legal liabilities.
"We are increasing the chances and incentives for law enforcers to bust into some people's places and take the assets of people who are not doing any harm to anybody else," Rohrabacher told reporters.
Lawmakers from California, Nevada, Colorado, Alaska and beyond will be raising these concerns in the next two weeks leading up to the vote on the budget bill. A budget amendment passed annually since the Obama years has barred the Justice Department from using federal funds to interfere with medical marijuana, and proponents say Sessions' high-profile move has set the stage to pass it again, along with another protecting recreational marijuana that has slipped through the cracks in the past.
Pro-legalization lawmakers say the blowback against Sessions also puts new momentum behind a bill that would bar the Justice Department from interfering with state marijuana regulation for good. Other bills would legalize weed outright, although they've had a harder time attracting Republican co-sponsors. However, Republicans would be wise to make marijuana reform a priority; otherwise, Democrats could use the issue to peel moderate GOP voters away from Republican candidates who refuse to stand up to Sessions in the midterms.
Meanwhile, it remains to be seen whether Sessions' new policy will result in more raids, arrests and unnecessary prison sentences in states that have legalized weed. Sessions can't stop the inevitable, but he can still harm a lot people trying.