THE ONE THING that is certain with the change in enforcement of federal marijuana laws is that there will be no uniform approach to enforcement by US attorneys in states that have legalized the sale of recreational marijuana.

Public comments and statements from some of the 12 US attorneys in the eight states that have legalized marijuana vary in clarity to what their approach will be. Only six of the federal prosecutors issued statements, leaving many to guess as to what will happen.

Marijuana is classified a Schedule 1 drug, the same as heroin, under federal law. As voters began approving referendums to legalize adult use, there was much consternation among those eyeing the potential multi-billion dollar industry about what the conflict in state and federal law would do. Then-President Barack Obama mollified much of that unease by ordering his Justice Department to issue regulations that would take a hands-off approach to prosecution in states where pot was legal as long as it was kept out of the hands of children and didn’t cross state lines.

Attorney General Jeff Sessions – a  longtime vocal opponent who has warned against the ravages of the evil weed, legal or not – unilaterally rescinded the approach of the Obama administration and instructed US attorneys to use their discretion in deciding how to deploy their resources over what constitutes a violation of federal law. But in doing so, Sessions also emphasized that the drug is illegal under federal law and advanced the conservative view that it was a health risk and public safety danger.

In Massachusetts, new US Attorney Andrew Lelling gave little indication which way he would proceed, focusing on the black market but also adopting the hard-line language of the Sessions memo. Lelling’s statement, in full, reads:

“[T]his office will pursue federal marijuana crimes as part of its overall approach to reducing violent crime, stemming the tide of the drug crisis, and dismantling criminal gangs, and in particular the threat posed by bulk trafficking of marijuana, which has had a devastating impact on local communities. This does not impact our ongoing, aggressive efforts in other areas, like the opioid crisis.

As with all of our decisions, we will continue to use our prosecutorial discretion and work with our law enforcement partners to determine resource availability, weigh the seriousness of the crime and determine the impact on the community.  In the spirit of the Attorney General’s memo, I intend to meet with our federal partners to discuss enforcement efforts and priorities. In the coming weeks I also plan to meet with our local and state counterparts to reinforce our commitment to assisting local communities in this effort.

As the Justice Department has highlighted, medical studies confirm that marijuana is in fact a dangerous drug, and it is illegal under federal law.  As a result, our office will aggressively investigate and prosecute bulk cultivation and trafficking cases, and those who use the federal banking system illegally.”

That last line regarding banking is sure to chill those who have been pondering investing in the industry, whether it was intentional or not on Lelling’s part. One of the benefits of the so-called Cole memorandum issued by the Obama administration was the nod to financial institutions to go ahead and do business with legal marijuana growers and sellers without fear of federal drug violations. Now that safety net is no longer there.

In Colorado, the country’s oldest recreational marijuana market, where sales started in 2014, Interim US Attorney Bob Troyer issued a statement that said, in essence, nothing will change in his office’s approach, with the focus remaining on “identifying and prosecuting those who create the greatest safety threats to our communities around the state.” That would appear to exclude legally registered and certified retail stores.

Another factor, though, is Troyer’s status as an interim US attorney. Troyer is one of nine interim US attorneys out of the 12 in states with legal marijuana, and that will also keep the uncertainty level high with no knowledge of what a permanent officeholder will do.

Billy Williams, the interim US attorney for Oregon, assured the state’s purveyors and customers that his intent is not to shut down the legal industry but rather “stemming the overproduction of marijuana and the diversion of marijuana out of state.” Just to the north, interim US Attorney Annette Hayes of the western district of Washington state, focused on the discretion Sessions’s order gives to each US attorney and said she will continue to focus on the illicit market rather than the legal one.

Interim US Attorney Adam Braverman of the Southern District of California, where legal pot went on sale just four days before Sessions’s order, echoed his boss’s law-and-order stance:

“The Department of Justice is committed to reducing violent crime and enforcing the laws as enacted by Congress. The cultivation, distribution, and possession of marijuana has long been and remains a violation of federal law,” Braverman said in a written statement to local media. “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.”

Alaska’s US attorney, Bryan Schroder, who was confirmed by the Senate in November, said current enforcement priorities will not change.

“The US 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,” Schroder said in a statement. “One of the key principles is to follow federal law enforcement priorities, both at the national and local levels. The highest priorities of the US 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 US 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.”

None of the other US attorneys issued statements, with each either remaining mum or saying they needed to study the order. In Maine, where legal sales of marijuana are on hold after Gov. Paul LePage vetoed voters’ decision to approve a referendum, US Attorney Halsey Frank made no comment. But in 2013, as chairman of the Portland Republican City Committee, he wrote an op-ed for a local newspaper condemning the moves to legalize both medical and recreational marijuana.

“Currently, federal law makes marijuana a Schedule I controlled substance, meaning that the federal government has found that it has a high potential for abuse, has no currently accepted medical use, and is unsafe,” wrote Frank, who was confirmed in October. “That puts Maine, along with other states, at odds with federal law. Where there is a conflict between state and federal law, federal law prevails.”

One reply on “Confusion reigns in states with legal pot”

  1. “Where there is a conflict between state and federal law, federal law prevails.”

    Remember too that the Federal Narcotics Act preceded many state laws — in most states, the distribution of opiates (including heroin) was still legal under state law.

    The same is true of guns — while some states, such as Massachusetts, also have state gun laws, others (e.g. Vermont) don’t. Yet Vermont’s lack of state gun laws doesn’t nullify federal gun laws…

    That’s the issue here — Massachusetts’ repeal of state laws banning marijuana doesn’t repeal the federal laws, only Congress can do that….

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