Cannabis conundrum

The legal marijuana market—both medicinal and recreational— has gotten much more complicated just as numerous additional states are officially allowing for the recreational use of cannabis. U.S. Attorney General Jefferson Session signed a memo on Thursday rescinded past guidance on enforcement of Federal marijuana laws that conflict with State laws that allow for the use cannabis.

The memorandums, generally referred to as the Cole Memo, was written by former Deputy Attorney General James M. Cole in 2013, provided guidance for enforcing Federal Cannabis laws in states that allowed for the legal growing and use of cannabis for both medicinal and recreational use.

The memo served a similar function to a “no-action” letter in financial regulation. It set a policy of non-interference with states that have approved the legal use of marijuana. There are 28 states that have approved the use of marijuana for medicinal use and eight states that have approved it for recreational use.

The text of the memo rescinded past guidance is below:


FROM: Jefferson B. Sessions,

Attorney General

SUBJECT: Marijuana Enforcement

In the Controlled Substances Act, Congress has generally prohibited the cultivation, distribution, and possession of marijuana. 21 U.S.C. 801 et seq. It has established significant penalties for these crimes. 21 U.S.C. 841 e! seq. These activities also may serve as the basis for the prosecution of other crimes, such as those prohibited by the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act. 18 U.S.C. 1956-57, 1960; 31 U.S.C. 5318. These statutes reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.

In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions. Attorney General Benjamin Civiletti originally set forth these principles in 1980, and they have been refined over time, as reflected in chapter 9-27.000 of the U.S. Attorneys? Manual. These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attomey General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.

Given the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately. This memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion in accordance with all applicable laws, regulations, and appropriations. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.

Previous guidance includes: David W. Ogden, Deputy Atty Gen., Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19. 2009); James M. Cole, Deputy Atty Gen., Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June M. Cole, Deputy Atty Gen, Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013); James M. Cole, Deputy Atty Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes (Feb. 14, 2014); and Monty Wilkinson, Director of the Executive Office for U.S. Attys, Policy Statement Regarding Marijuana Issues in Indian Country (Oct. 28, 2014).