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January 4, 2018

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

Confirming morning reports, today Attorney General Jeff Sessions issued this new one-page memo to all US Attorneys on the topic of "Marijuana Enforcement." The memo rescinds the Cole and Ogden and related Obama-era enforcement memos (calling them "unnecessary"), and does so without announcing any formal or even informal new policy while saying DOJ's well-established general policies and principles for all federal prosecutions should govern.

Notably, this press release issued with the new Sessions marijuana memo provides some of thematic justifications for his decision:

The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents....

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. 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."

Interestingly, this new AP article from Colorado, headlined "U.S. Attorney for Colorado: Status quo on marijuana enforcement," suggests local control could mean little or no change in some regions:

The U.S. Attorney for the District of Colorado said Thursday there will be no immediate changes in marijuana enforcement after Attorney General Jeff Sessions rescinded a policy that paved the way for legalized pot to flourish in states across the country.

“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions,” U.S. Attorney Bob Troyer said.

“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.

“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.”

It will be interesting to see whether a host of other US Attorneys will explain, in general or in detail, how they play to operationalize the "trust and local control" that AG Sessions says he has now given them.

Related posts from here and MLP&R:

January 4, 2018 at 03:35 PM | Permalink


I think the biggest change for this are regulated marijuana distributors are more likely to shut down out of fear of Federal drug distribution charges, while possession is likely to still be decriminalized. This means people are again more likely to turn towards illegal sources for marijuana production and distribution (i.e., organized crime). The only exception that is still out of the Attorney-General's hands is with Medical Marijuana. To my knowledge, the Rohrabacher–Farr amendment is still in effect for budgets, meaning the Federal government cannot use funds to prosecute medical marijuana cases, although that might change soon.

Posted by: Erik M | Jan 4, 2018 6:04:29 PM

This policy will bring opprobrium on the rule of law. I have standing to sue Sessions. I would do it to introduce the doctrine of regulatory quackery. This is not just ineffective, but a violation of the Fifth Amendment procedural due process right and a regulatory taking. It needs to be against public policy since it deprives many types of patietns patients of proven treatments.

Posted by: David Behar | Jan 5, 2018 10:44:56 AM

Such much for states' rights. Don't hold your breath waiting for the Federalist Society to condemn this.

Posted by: John | Jan 5, 2018 11:45:08 AM

This is all very interesting. The law is the law no matter what people say and the best attorneys understand this. Thank you for sharing.

Posted by: Vincent McGee | Jan 4, 2019 6:56:36 PM

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