Attorney General Jeff Sessions, the nation’s top law enforcement officer, is an outspoken critic of marijuana.  How Attorney General Sessions approaches marijuana, both medical and recreational, has the power to shape, enhance or destroy the industry.  One of the core issues for legal marijuana businesses is the federal illegality of marijuana: state legalization does not change the Controlled Substances Act, 21 U.S.C. 13, which still classifies marijuana as a Schedule I controlled substance.  The conflict between states where marijuana is legal and the federal laws criminalizing marijuana creates a legitimate federalism concern.

Before Attorney General Sessions was appointed, marijuana businesses could rely on some limited federal guidance.   Former Obama Administration Deputy Attorney General James M. Cole issued a memorandum to all U.S. Attorneys on August 29, 2013 (the “Cole Memorandum”) explaining the Department of Justice’s (“DOJ”) position on the limited scenarios where federal law enforcement should enforce federal marijuana laws, which primarily address the availability and/or provision of marijuana to children and the diversion of marijuana across state lines.  Soon thereafter, the Department of the Treasury Financial Crimes Enforcement Network issued a memorandum to financial institutions about their role in marijuana businesses (the “FinCEN Memorandum”) which, for all intents and purposes, adopted the positions taken by the DOJ as set forth the Cole Memorandum.

The applicability of these memoranda was called into question with the new administration.  Attorney General Jeff Sessions has been a vocal opponent of marijuana.  On April 5, 2017, Attorney General Sessions issued a memorandum to US Attorneys advising that he established a Task Force on Crime Reduction and Public Safety (the “Task Force”), which was made up of prosecutors and federal law enforcement officers.   Attorney General Sessions’ memorandum advises that that the Task Force would review marijuana policy as follows:

Task Force subcommittees will also undertake a review of existing policies in the areas of charging, sentencing, and marijuana to ensure consistency with the Department’s overall strategy on reducing violent crime and with Administration goals and priorities.

In response to Attorney General Sessions’ memorandum, on August 5, 2017, the Associate Press reported that the Task Force came up with “no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views.  The group’s report largely reiterates the current Justice Department policy on marijuana.”  The Task Force’s report has not been made available to the public.

Attorney General Sessions’ hard line stance on marijuana may be changing.  When called to testify before the House Intelligence Committee on November 14, 2017, Attorney General Sessions gave the following marijuana-related testimony:

REPRESENTATIVE STEVE COHEN (D-TN):         You said one time that good people don’t smoke marijuana.  Which of these people would you say are not good people…Quickly.  Jon Kasich, a good person?  George Pataki, Rick Santorum, Newt Gingrich, Jeb Bush, Arnold Schwarzenegger, Judge Clarence Thomas – which are not good people?  [A list of prominent Republicans who ostensibly have admitted to using cannabis]

ATTORNEY GENERAL SESSIONS:         So the question was, what do you do about drug use, the epidemic we’re seeing in the country, and how you reverse it.  Part of it is a cultural thing.  I explained how when I became the United States attorney in 1981, and drugs were being used widely, over a period of years, it became unfashionable, unpopular, and people were seeing – it was seen as such that good people didn’t use marijuana.”

This testimony suggests that Attorney General Sessions’ thoughts on marijuana come from thirty to forty years ago, and those past cultural perceptions could be driving his position on marijuana.  Attorney General Sessions’ testimony at least leaves open the possibility that he recognizes that his previous hardline stance on cannabis is untenable in the present culture, especially where multiple states have legalized recreational adult-use marijuana.

In testimony that could prove critically important for the legal marijuana industry, Attorney General Sessions functionally adopted the Cole Memorandum, perhaps in response to the Task Force’s assessment:

ATTORNEY GENERAL SESSIONS:  “Our policy is the same, really, fundamentally as the Holder-Lynch policy, which is that the federal law remains in effect and a state can legalize marijuana for its law enforcement purposes but it still remains illegal with regard to federal purposes.”

While the Attorney General did not specifically identify what he meant by a state purpose versus a federal purpose, the most reasonable interpretation of the testimony is to align it with the Cole Memorandum’s goals of preventing distribution of marijuana to minors and distribution of marijuana across state lines.  If this is indeed the Attorney General’s new position, it would represent a marked shift in his thinking.

How Attorney General Sessions addresses marijuana (or how he doesn’t) will play a major role in the development of the recreational marijuana industry in New Jersey.  We will continue to update this blog with new developments from the Attorney General as they unfold.