The federal government “shutdown” that ended yesterday highlighted the tenuous legal position of state-licensed marijuana merchants, who are worried about a possible crackdown in light of Attorney General Jeff Sessions’ January 4 memo rescinding guidelines that had discouraged federal prosecutors from targeting them. The new continuing resolution, which expires on February 8, renewed the spending rider that bars the Justice Department from interfering with the implementation of state medical marijuana laws, which may also be included in whatever spending bill comes next. But since attempts to expand the rider beyond medical marijuana so far have been unsuccessful, the fate of cannabusinesses serving the recreational market still lies in the hands of U.S. attorneys across the country. Here is a rundown of what U.S. attorneys in the nine states with legal recreational pot have said about marijuana enforcement since Sessions issued his memo, which told them to apply the DOJ’s “well-established general principles” in deciding which cases to pursue.
U.S. Attorney Bryan Schroder, a Trump appointee confirmed last November, issued a statement on January 4. “The U.S. Attorney’s Office for the District of Alaska will continue to use the long-established principles of federal prosecution to determine what cases to charge,” he said. “One of the key principals [sic] is to follow federal law enforcement priorities, both at the national and local levels. The highest priorities of the U.S. Attorney’s Office in Alaska are consistent with those of the Justice Department nationally: combating violent crime, including as it stems from the scourge of drug trafficking. Consistent with those priorities, the U.S. Attorney’s Office released an Anti-Violent Crime Strategy in October of the past year. We will continue to focus on cases that meet those priorities.”
Adam Braverman, appointed by Sessions last November as interim U.S. attorney for the Southern District of California (which includes San Diego), issued a statement on January 4. “The Department of Justice is committed to reducing violent crime and enforcing the laws as enacted by Congress,” he said. “The cultivation, distribution, and possession of marijuana has long been and remains a violation of federal law. We will continue to utilize long-established prosecutorial priorities to carry out our mission to combat violent crime, disrupt and dismantle transnational criminal organizations, and stem the rising tide of the drug crisis.”
Nicola Hanna, whom Sessions appointed on January 3 as interim U.S. attorney for the Central District of California (which includes Los Angeles), has not addressed his boss’s memo on marijuana enforcement.
McGregor Scott, a Trump appointee, took office as the U.S. attorney for the Eastern District of California, which includes Sacramento, in December. His office issued a statement on January 5. “The cultivation, distribution and possession of marijuana has long been and remains a violation of federal law for all purposes,” it said. “We will evaluate violations of those laws in accordance with our district’s federal law enforcement priorities and resources.”
Brian Stretch, the U.S. attorney for the Northern District of California (which includes San Francisco), resigned on the same day Sessions sent his memo, although he said the two developments were not connected. Sessions is expected to name an interim U.S. attorney to replace Stretch. Meanwhile, the acting U.S. attorney is Alex Tse, formerly the first assistant U.S. attorney, who has not discussed marijuana enforcement in light of Sessions’ memo.
Bob Troyer, whom Sessions picked as the interim U.S. attorney for Colorado last November, issued a statement on January 4. “The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions—focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state,” he said. “We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”
U.S. Attorney Halsey Frank, a Trump appointee who was confirmed in October, issued a statement on January 9:
We must proceed on a case-by-case basis, individually assessing each matter according to DOJ’s Principles and deciding whether to use our resources to pursue it. DOJ’s national priorities include the rule of law, national security and terrorism, immigration, violent crime and international gangs such as MS-13, the opiate crisis, supporting law enforcement, and promoting public confidence. In addition, our local priorities include domestic violence and guns, human trafficking, and elder fraud. We will work with our federal, state, local and tribal partners to focus on those who pose the greatest threat to the people and communities that we serve.
With respect to the prosecution of drug offenses, this office has prioritized the prosecution of cases involving the trafficking of opiates, cocaine, crack and similar hard drugs. We have also prosecuted large-scale marijuana distribution organizations and did so even while operating under the recently rescinded DOJ guidance. Prosecution of drug possession cases has not been a priority.
U.S. Attorney Andrew Lelling, a Trump appointee who took office in December, issued a statement on January 8:
I understand that there are people and groups looking for additional guidance from this office about its approach to enforcing federal laws criminalizing marijuana cultivation and trafficking. I cannot, however, provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.
This is a straightforward rule of law issue. Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana. As a law enforcement officer in the Executive Branch, it is my sworn responsibility to enforce that law, guided by the Principles of Federal Prosecution. To do that, however, I must proceed on a case-by-case basis, assessing each matter according to those principles and deciding whether to use limited federal resources to pursue it.
Deciding, in advance, to immunize a certain category of actors from federal prosecution would be to effectively amend the laws Congress has already passed, and that I will not do. The kind of categorical relief sought by those engaged in state-level marijuana legalization efforts can only come from the legislative process.
Dayle Elieson, whom Sessions appointed as interim U.S. attorney for Nevada the day before he issued his memo, has not discussed how it might affect her prosecutorial priorities.
Billy Williams, who has served as U.S. attorney for Oregon since 2015 and was nominated by Trump last November to remain in that position, was cautious in a January 5 interview with The Oregonian. “I want to be methodical and thoughtful about what we do here in the District of Oregon,” he said, saying he does not “believe in overreacting.” But Williams also worried that Oregon continues to feed the black market in marijuana, which he called a “huge problem.”
Williams elaborated on that concern in a January 12 opinion piece published by the same paper. “Oregon has a massive marijuana overproduction problem,” he said. “In 2017 alone, postal agents in Oregon seized 2,644 pounds of marijuana in outbound parcels and over $1.2 million in cash….Overproduction creates a powerful profit incentive, driving product from both state-licensed and unlicensed marijuana producers into black and gray markets across the country. This lucrative supply attracts cartels and other criminal networks into Oregon and in turn brings money laundering, violence, and environmental degradation.” Williams also expressed concern about underage use, drugged driving, and marijuana-related hospital visits, saying he is waiting to see how the state addresses these issues before “charting a path forward for the enforcement of marijuana in Oregon.”
Gov. Phil Scott signed a legalization bill yesterday. Unlike the ballot initiatives approved by voters in the eight other states that have legalized recreational use, Vermont’s new law does not authorize commercial production and distribution—just possession and home cultivation. U.S. Attorney Christina Nolan, a Trump nominee who took office in November, does not seem to have addressed the implications of Sessions’ memo.
Annette Hayes, who has been the interim U.S. attorney for the Western District of Washington (which includes Seattle) since 2015, issued a statement on January 4, saying the principles to which Sessions alluded have always guided her office. “As a result,” she said, “we have investigated and prosecuted over many years cases involving organized crime, violent and gun threats, and financial crimes related to marijuana. We will continue to do so to ensure—consistent with the most recent guidance from the Department—that our enforcement efforts with our federal, state, local and tribal partners focus on those who pose the greatest safety risk to the people and communities we serve.”
Joseph Harrington, whom Sessions appointed as interim U.S. attorney for the Eastern District of Washington (which includes Spokane) on January 4, issued a statement the following day. Like Hayes, he said the principles mentioned in Sessions’ memo “have always been at the core” of what his office does. He said his office “will continue to ensure, consistent with the most recent guidance from the Department of Justice, that its enforcement efforts with our federal, state, local, and tribal law enforcement partners focus on those who pose the greatest safety risk to the communities in Eastern Washington, by disrupting criminal organizations, tackling the growing drug crisis, thwarting violent crime, and corralling white-collar fraudsters in this District.”
Even the DOJ guidelines that Sessions withdrew did not “immunize a certain category of actors from federal prosecution,” as Lelling, the U.S. attorney general in Massachusetts, puts it. While U.S. attorneys since 2013 generally have refrained from prosecuting marijuana suppliers who follow state law, there was never any guarantee to that effect, and none will be forthcoming until Congress changes federal law. But Oregon’s Billy Williams is the only U.S. attorney in these nine states who has indicated he might be contemplating a cannabis crackdown, a decision he said would depend on how well the state controls the problems that concern him. Four U.S. attorneys, two in California and one each in Nevada and Vermont, have not said anything about Sessions’ memo. The remaining eight have indicated that it will not affect their prosecutorial practices.
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