When Jeff Sessions decided he was going to reverse an Obama-era policy that takes a hands-off approach to cannabis, he was rescinding the “Cole Memo.”
In 2012, the Colorado and Washington electorate decided that adults should be able to use cannabis recreationally. By August 2013, both states nearly formed a system of laws and regulations to govern this new industry. As with all medical marijuana industries before, the state laws continued to be at odds with federal law concerning the legality of cannabis. But, recreational legalization opened up an entirely new rift between federal and state law.
When prosecuting crimes, state attorneys look to the federal government for guidance. This guidance tells the state what priorities should be in terms of prosecuting crimes vs allowing the states to govern themselves. In the past, medical states have been allowed to set up their systems and mostly operate without interference from the federal government. Although, this has not always been true, even during the Obama administration.
Drafting of the Cole Memo
In 2013, a document was drafted by former US Attorney General James M. Cole that issued a memorandum to all US attorneys. This memo has then published through the Department of Justice on August 29, 2013. In Cole’s memo, it was indicated that prosecutors and law enforcement should just focus on specific priorities related to state-legal cannabis operations, which are as follows:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
It was modeled after a similar memorandum issued by Deputy Attorney General David Ogden in 2009 that directing US attorneys to “not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing laws providing for the medical use of marijuana.”
The Cole Memo was a very significant shift in the federal government. Their decision to de-prioritize enforcing prohibition under the Controlled Substances Act was a huge win for State’s Rights advocates and cannabis advocates alike. This more hands-off approach allowed the cannabis industry to flourish and bring in unprecedented profit and tax revenue.
After the memo was issued, most federal prosecutions were halted unless they met the listed criteria. A notable exception was the case of the Kettle Falls Five, a family that relied on cultivating medical cannabis as part of a collective garden in Washington state in 2015. The family was cultivating plants for five patients, but the plant number exceeded the 45-plant limit. After firearms were found on their property, the entire family faced five federal drug charges, of which four were dismissed.
Since the issuance of the memo, federal cannabis prosecutions have greatly reduced in legal states. In August 2017, the Task Force on Crime Reduction and Public Safety appointed by Jeff Sessions found no new policy suggestions, and its report basically reiterated the previous administration’s Justice Department policy on cannabis.
As of Thursday, January 4, 2018, the Justice Department led by Jeff Sessions has issued a memo that basically rescinds The Cole Memo, found here(PDF).
In the memorandum, Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow “well-established principles” when pursuing prosecutions related to marijuana activities. The DoJ claims, “This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.”
“It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” said Attorney General Jeff Sessions. “Therefore, today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”