Elizabeth Wittemyer, Attorney At Law Prepared at the Request of the Marijuana Education Initiative When U.S. Attorney General Jeff Sessions decided to issue a memorandum on January 4, 2018, rescinding the Cole Memorandum, it was clear that his long-time wish to demonize marijuana and criminalize activities around the legal state markets had come to pass. I am an attorney who represents the cannabis industry, and several worried clients and colleagues have wished to discuss the issue and the possible consequences with me. The interplay of state and federal law can be confusing, especially as we consider the effects the Sessions Memo will have on the cannabis industry. Understanding the hierarchy of the U.S. Justice Department and its authority over the states is one way to view how this interplay works. The Justice Department is an executive-branch agency that deals with crimes at the federal level and that enforces federal law. The U.S. Attorney General is a cabinet member appointed by the president and is the nation’s chief law enforcement officer for federal law. U.S. attorneys are employees of the Justice Department and prosecute federal cases brought to them by federal law enforcement agencies such as the Federal Bureau of Investigation and the Drug Enforcement Administration. The DEA investigates crimes involving cannabis. You might remember from the television show Law and Order, the DEA investigates crimes as law enforcement officers and the U.S. attorneys prosecute in federal courts the crimes brought to them by DEA officers. Marijuana is federally illegal and is classified as a Schedule I drug under the Controlled Substances Act. The DEA is the lead law enforcement agency for the domestic enforcement of the Controlled Substances Act. The Cole Memorandum from 2013 established a new “prosecutorial discretion” regarding cannabis. It was a policy guidance to U.S. attorneys that made the cannabis industry a low prosecutorial priority in states that had legalized cannabis, as long as those states complied with the guidelines contained in the memo—namely, to protect youth and control diversion. What the Jeff Sessions Memo does is reestablish cannabis, regardless of legality within the states, as a prosecutorial priority along with all other federal crimes. In the memo, Sessions encourages the prosecution of other crimes that can be tied to cannabis, such as money laundering and violations of banking regulations. These types of prosecutions will almost certainly include asset forfeiture actions. The Sessions Memo highlights the “Department’s finite resources” and points to principles of prosecution set in 1980, taking us back to the old, failed policies of the war on drugs. Though U.S. attorneys seem to have little appetite to initiate prosecutions against legal cannabis businesses, the same cannot be said of the DEA. In fact, the DEA has always had a Domestic Marijuana Eradication/Suppression Program aimed at completely eradicating cannabis in the United States. According to the Department of Justice Fiscal Year 2016 Budget submitted to Congress, the DEA spent millions of dollars on marijuana eradication efforts, including anti-legalization education programs. Although the cannabis industry blames the DEA for refusing to reschedule cannabis from its present Schedule I status, it is the Department of Health and Human Services that has the legal responsibility to make scientific and medical determinations regarding drug scheduling. The head of HHS Tom Price resigned in a cloud of scandal in September 2017. The president has nominated Alex Azar, a former pharmaceutical company executive, to fill the position, and Mr. Azar’s confirmation hearing began January 9, 2018. As cannabis is a competing product to pharmaceuticals, it is highly unlikely that a former representative of the pharmaceutical industry, which holds one of the most powerful lobbies in Congress, will consider rescheduling marijuana. With Azar as head of HHS, the pharmaceutical industry would have even more control over our federal agencies in their quest to demonize cannabis, with Jeff Sessions leading the charge. The Rohrabacher-Blumenauer amendment (formerly the Rohrabacher-Farr amendment) is part of the federal budget established by Congress and has been included in every annual federal budget appropriations since 2014. The amendment prohibits the use of federal funds to supersede legal medical marijuana state laws. What many people do not realize is that the amendment primarily protects medical marijuana and not recreational marijuana. This year, Congress has been unable to agree on the budget and has limped along by making continuing resolutions to keep a government shutdown at bay. The last continuing resolution was on December 22, 2017, and it extended the previous budget to January 19, 2018. The Senate appropriations included the Rohrabacher-Blumenauer amendment; the House version did not after Attorney General Jeff Sessions lobbied against its inclusion. It is unclear what will happen to the amendment amid the many other fights over the budget, including immigration, defense, and domestic programs. Even if the Rohrabacher-Blumenauer amendment is included in the next appropriations bill, the rescission of the Cole Memo places the recreational marijuana industry at particular risk. Federal law supersedes state law, “preempting” state laws that conflict with federal laws. With the Cole Memo, the Obama administration allowed states to experiment with legalization of cannabis, in essence, “promising” not to bring a preemption action in federal court that would shut down a state’s legalization of marijuana. Although many legal scholars argue that the states that have legalized have relied on this federal discretion to their detriment, and therefore there are now legal defenses to a preemption action, the legalized states’ courts are not friendly to cannabis. State law cannot legalize what is illegal under federal law. In several court cases, acts that are legal under state marijuana laws were not protected by the courts owing to the illegality of the act under federal law, and this has led to seizures of inventory and loss of jobs. Cannabis businesses must be very careful in seeking relief in the state courts and should instead opt to negotiate, mediate, or arbitrate disputes whenever possible. Although recreational cannabis stands in particular danger because of its relative lack of credibility compared to medical cannabis, the entire legal cannabis industry is at risk. As we experience the devastating opioid crisis, with thousands of lives lost, the Jeff Sessions Memo begs reason and common sense. President Trump declared the opioid epidemic a national emergency; however, no new federal funds were allocated to address the crisis. Medicaid is under attack and will be cut back; by how much is the only question. States, facing budget shortfalls, have cut treatment programs throughout the nation. First responders dealing with opioid overdoses are vicariously traumatized by the horror they experience every day and their resources are stretched to the point of breaking. Our courts, overwhelmed with opioid-related crime cases, have few options to deal with the social ill of addiction through the criminal justice system. We are losing our family, friends, and neighbors every day to opioids. Yet, rather than spend federal money on prosecuting feel-good doctors, pill mills, and foreign actors to attempt to reduce the opioid epidemic, Jeff Sessions will devote the Department of Justice’s finite resources to prosecuting a drug that no one dies from. In fact, research shows the promise of cannabis as an effective treatment in reducing the need for opioids. The question is, therefore, one of where to direct our government’s limited resources. Do we spend federal dollars prosecuting opioids or prosecuting cannabis? Do we spend federal dollars on anti-legalization education or on education that will help our youth make healthy choices around legalization? Education programs such as those of the Marijuana Education Initiative, which provides reality-based education for youth regarding marijuana, are the initiatives that our tax dollars should fund. Now is the time to press our elected representatives to set the nation’s priorities straight. To learn more about the misinformation surrounding marijuana and the opioid epidemic check out our blogs The Truth and Marijuana and Opioids: Sorting Through the Misinformation
We have long known that US Attorney General Jeff Sessions does not approve of marijuana, not to mention any drug. (His office refuses to answer the question of whether he drinks alcohol.) He has famously said that “good people” don’t use marijuana. On January 4, he implicitly threatened states that have legalized marijuana for medical or recreational use. He rescinded an Obama-era memo, issued in 2013, which had signaled considerable leeway for states even though marijuana is illegal under federal law. His timing was ironic. He issued his memo the day before the Vermont House of Representatives was scheduled to vote to legalize marijuana through legislative action. Indeed, they did so on January 5th, and the Vermont Senate did the same a week later. Apparently, as one of my advocacy colleagues said, “They did not get the memo.” Other states where legalization has been recently approved by ballot initiative—most notably Massachusetts and Maine—seem for the most part undeterred by the Sessions memo. In Colorado, one of the first two such states (Washington was the other) to legalize marijuana in 2012, the response has verged upon anger. US Senator Cory Gardner (R-CO) feels betrayed. During Mr. Sessions’ confirmation hearing as attorney general, Sen. Gardner asked for and received assurances that no such action would be taken. There are two reasons why I think we should be not only bemused but angry at what the Attorney General has done. The first is that we have long passed the point of wondering whether cannabis as medicine has value. It clearly does. It is now a reality in 29 states containing over 60% of the U.S. population. Respected medical journals document that marijuana offers relief for patients with cancer and multiple sclerosis and severe chronic pain. An article entitled, “Talking About Marijuana—In Church” in the January 3 issue of The Christian Century notes that marijuana is important to older folks because “it appears to be particularly helpful in coping with the myriad side effects of other drugs.” Are these not “good people”? It is not clear yet what the consequences of the Sessions memo will be, but it may make life more difficult for the providers of medical marijuana. For this, he should be condemned. (We provide the opportunity to TAKE ACTION.) The second reason for anger starts with the fact that we are in the midst of a national opioid health crisis. Mr. Sessions should use the resources of his office to prosecute those in the medical community who have helped to create and continued to fuel this epidemic. When it comes to medical marijuana, he should recognize the promise of marijuana as reducing the need for opioids. Attorney General Jeff Sessions by all accounts likes his job because it enables him to pursue “law and order” policies of the 1980s which he is now in a position to impose. When it comes to marijuana, he is wrong.
Three nationally prominent physicians have just spoken out in a prestigious journal in support of marijuana legalization. The November issue of the American Journal of Public Health features an article by Dr. H. Westley Clark, Dr. Joyce Elders, and Dr. David Nathan titled “The Case for Marijuana Legalization.” Dr. Clark has a distinguished record as the Director of the Center for Substance Abuse Treatment SAMSHA for 16 years. He is currently Dean’s Executive Professor in the College of Arts and Sciences at Santa Clara University. Dr. Elders is well known as the former Surgeon General under President William Clinton; she is now professor emeritus of pediatrics at the University of Arkansas for Medical Sciences. Dr. Nathan is a psychiatrist in Princeton, New Jersey and serves as the Director of Continuing Medical Education for the Princeton HealthCare System (PHCS). In 2015 he joined with colleagues to found Doctors for Cannabis Regulation (DFCR), described in the article as “the first and only national physicians organization dedicated to the legalization and regulation of the adult use of cannabis.” “The unjust prohibition of marijuana has done more damage to public health than has marijuana itself,” according to these three experts. They point to the high number of marijuana arrests—about 575,000 every year in the United States; the disproportionate impact of marijuana laws on African Americans; and the fact that the implementation of current marijuana laws leads to increased poverty, itself a public health issue. The authors argue that prohibition has failed: “over 22,000 million Americans use cannabis each month.” They note that “both marijuana and alcohol can adversely affect brain development in minors.” But they point out that prohibition has not prevented underage use; in fact, it misleads by sending a message that marijuana is dangerous for everyone, which youth “know is not true.” The authors believe that decriminalization (treating low-level marijuana possession as a civil offense, comparable to a traffic ticket), is a welcome step. Decriminalization does not, however, end the need for regulation, which enables individuals to know what they are using, protects against a contaminated product, and can constrain bad marketing practices, such as targeting youth. The article offers a set of recommendations about how marijuana should be legalized, including government oversight of production, testing, distribution, and sales, rigorous standards of labeling, clear information about amount and content of what is being consumed; and other measures. Here is the full text of the article.
It was evident before he was appointed Attorney General that Jefferson Sessions’ drug policies are ill-informed and wrong. It took watching his testimony before the Senate Intelligence Committee last Tuesday to understand just how this is the case. I had a “eureka” moment. He closed his statement with a self-serving peroration that had no relation to why he had been called before the Committee: “… Just last week, it was reported that overdose deaths in this country are rising faster than ever recorded. The murder rate is up over 10 percent—the largest increase since 1968. Together, we are telling the gangs, the cartels, the fraudsters, and the terrorists—we are coming after you. Every one of our citizens, no matter who they are or where they live, has the right to be safe in their homes and communities.”
It is good news that Connecticut may become the first state to legalize marijuana through the action of state legislators rather than by ballot initiative. On the morning of March 7, a new state coalition– Regulate Connecticut — held a press conference to launch a campaign to tax and regulate marijuana there. The Public Health Committee of the Connecticut House then held over 14 hours of hearings. In the press conference, I made the case that legalizing marijuana can, and should, be made on religious, not just secular grounds. This is not immediately obvious. It requires a closer look.