The Cole Memo

In 2013, US Attorney James Cole issued a memorandum that instructed federal law enforcement and prosecutors to adopt a more “hands-off” approach to enforcement of marijuana laws in states that had legalized medical or recreational use. This shift in policy has allowed the cannabis industry to flourish in 30 states medicinally and 8 states recreationally. But, does the recent announcement from Attorney General Jeff Sessions mean an end to the Cole Memo era?

Jeff Sessions Memorandum

On January 4, 2018 the US Justice Department released a memorandum entitled “Marijuana Enforcement” and signed/initialed by Attorney General Jefferson Sessions. This memo essentially reverses the guidance given in previous memos authored by David Ogden and James Cole. Federal prosecutors are instructed to follow previously established procedures when considering prosecution of federal marijuana laws.

Political Reaction

Reaction to the memo issued by Mr. Sessions has not been well received by politicians at both the state and federal level. Governers in states with some form of legalized cannabis have universally criticized the memo as adding further confusion to the issue of state-level cannabis regulation.

The governor of Colorado, John Hickenlooper, publicity stated:

…the Cole memo go it right and was foundational in guiding states efforts to regulate the production and distribution of marijuana. Colorado has created a comprehensive regulatory system committed to supporting the will of our voters… Today’s decision does not alter the strength of our resolve in those areas, nor does it change my constitutional responsibilities.

Senator Catherine Cortez Masto, D-Nev, made the following statement:

Attorney General Sessions says he is a headstrong advocate for states’ rights. However, his decision giving free rein to federal prosecutors to target the cannabis industry in states where voters and legislatures have chosen to legalize and regulate the use of marijuana exposes his hypocrisy. In states like Nevada, voters have spoken loud and clear that marijuana must be regulated and taxed, and that the state should be able to enforce its marijuana laws without federal interference.

The opposition to this apparent change in federal policy has been both swift and surprisingly bipartisan. Republican Senator Cory Gardner, R-Colorado, and Rep. Dana Rohrabacher, R-California, have both scolded the attorney general for trampling states rights and for a “profound misreading of the Constitution” (Rohrabacher).

The Future of Legal Cannabis

What does the future hold? At this point, no one can say for certain if federal prosecutors will revert to marijuana policies from the 1980’s, pre-Cole Memo. With the legal cannabis industry growing quickly in nearly 2/3 of US States, it will be an uphill battle for the Trump and Sessions administrations to stop the trend, especially given the strong winds of change blowing in favor of expanding medical and recreational cannabis.

 

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