The Sessions Memo: Pothole or Pitfall in the Evolution of State Regulated Marijuana Laws?

By Jeff May*

On January 4th, 2018, the Office of the Attorney General issued a memorandum clarifying the Justice Department’s guidance policies to U.S. Attorney’s Offices for the enforcement of federal marijuana laws in light of state legalized medical and recreational marijuana.[1]This has been seen by some as a complete rebuttal of Obama-era enforcement policies and a warning sign that the Trump Administration might initiate a federal crackdown on marijuana users and businesses in states that have legalized medical and recreational marijuana.[2]This blog post will analyze the Sessions Memo, its actual relationship to the Obama-era guidance policies it has rebuked, and what it means for American citizens and businesses in the emerging, unstable field of legalized medical and recreational marijuana.

One constant in American life for the past 50 years is the federal ban on possession and use of “marihuana” since it was declared to be a Schedule I drug under the Controlled Substances Act of 1970.[3]This absolute prohibition began to be challenged, however, through the advent of state approved medical marijuana programs, starting with California’s Proposition 215 in 1996.[4]Since then, thirty-three states have voted to legalize medical marijuana.[5]Of these thirty-three states, at least ten and the District of Columbia have gone farther and voted to legalize recreational marijuana programs.[6]

Starting in 2009, the Obama Justice Department released a series of guidance memos for U.S. Attorney’s Offices designed to focus their efforts in enforcing federal marijuana laws in states with legalized medical marijuana.[7]The first memo, drafted by then U.S. Deputy Attorney General David W. Ogden, emphasised that D.O.J. personnel should not focus on individuals using marijuana for serious medical needs or on individuals or businesses that were in clear compliance with state regulatory laws.[8]This directive was reiterated and further clarified by three separate memos written by U.S. Deputy Attorney General James M. Cole, on June 29th, 2011, August 29th, 2013, and February 14th, 2014, respectively.[9]Collectively known as “The Cole Memos,” these guidelines attempted to address the emerging business dynamics of a more mature and growing medical marijuana industry, as well as the unaddressed enforcement and regulatory issues brought up by the emergence of legalized recreational marijuana.[10]The February 14th memo also addressed new Department of Treasury Financial Crimes Enforcement Network (FinCEN) rules allowing banks to handle business with state compliant medical and recreational marijuana entities on a case-by-case basis and still operate within the requirements of the Bank Secrecy Act.[11]

Of the three Cole memos, the August 23rd, 2013 memo is of particular importance. It explicitly renewed the original enforcement priorities outlined in the Ogden memo and expanded them into eight regulatory guidelines for enforcement.[12]New additions included provisions to monitor inter-state transfers of marijuana, prevent drugged driving and other negative public health effects of marijuana use, and prohibit the production and possession of marijuana on public lands.[13]The memo emphasized enforcement of marijuana related crimes had historically been left to states and local law enforcement unless D.O.J. officials felt their priorities were in jeopardy.[14]Furthermore, U.S. Attorneys were asked to evaluate their state’s regulatory regimes to determine if they were sufficient and robust enough to monitor for illegal operations.[15]

What the Sessions Memo explicitly outlines is that all four of these Obama-era guidance memos are no longer in effect.[16]What replaces them is less clear. As the official D.O.J. press release states, “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.”[17]To clarify which principles U.S. Attorneys should follow, Sessions points to Chapter 9, Section 27 of the Justice Manual (formerly, the US Attorney’s Manual), which broadly outlines the responsibility and powers granted to US Attorneys to exercise prosecutorial discretion.[18]In an interesting twist, the original Obama policy memo written by Ogden points to the same chapter, but to section 2, which also outlines the discretionary power granted to US Attorneys.[19]Making the waters even murkier, Sessions’s explicitly outlined priorities – preventing violent crime and disrupting criminal enterprises – were also encompassed in several of the priority areas outlined in the Cole Memos.[20]

There has been some reaction within the U.S. Attorney’s Office to the guidance clarifications. Bob Troyer, the U.S. Attorney for Colorado (a state with legalized medical and recreational marijuana) said on the day the memo was issued:

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.[21]

Since that time, eleven other U.S. Attorneys have issued similar statements stressing continued compliance with department guidance, but with no indication marijuana prosecutions are now a top or even elevated priority.[22]The most recent statement comes from Matthew Schneider and Andrew Birge, U.S. Attorneys for the Eastern and Western Districts of Michigan. Issued on November 8th, 2018, two days after Michigan voted to legalize recreational marijuana, their statement indicates a more tolerant tact towards marijuana prosecutions may actually be re-emerging:

As we weigh the interests in enforcing a law, we must also consider our ability to prosecute with our limited resources. Combating illegal drugs is just one of our many priorities. We are also focused on preventing and prosecuting terrorism, violent crime, gangs, corruption, and fraud. Even within the area of drugs, we are increasingly focused on combating the opioid epidemic, which is killing our citizens at an alarming rate. Our offices have never focused on the prosecution of marijuana users or low-level offenders, unless aggravating factors are present. That will not change. Nevertheless, crimes involving marijuana can pose serious risks and harm to a community.[23]

What all of these non-declaratory statements may indicate is that in states with legalized medical and recreational marijuana, the U.S. Attorney’s Offices may not end up making any fundamental changes in their approach to monitoring for illegal drug crimes. Put simply: they have been instructed since 2009 to use their best judgment in exercising prosecutorial discretion to monitor emerging state-sanctioned marijuana programs. In 2018, they were to told to continue using their best judgment to achieve law enforcement priorities, though this reiteration was packaged and delivered as being a brand new directive from D.O.J. leadership. In light of this, the real purpose of these statements may be nothing more than a performative signaling exercise designed to please all audiences inside and outside of the department.

Looking to the future, there have been no reports yet of any legal medical or recreational marijuana users, businesses, or facilities being targeted, arrested, and tried by federal agents for violating federal marijuana laws. By issuing the Sessions memo in January, the Department of Justice has reopened the door for a federal crackdown. Whether the department or any U.S. Attorney will take such a step remains unknown since the memo is not clear in distinguishing itself from the Obama-era policies it says it repudiates and abolishes. What is clear is that patients, customers, and businesses in over half the United States will need to proceed cautiously until this matter is further clarified by the Department of Justice or by Congress.

*Jeff May is a Junior Editor on MJEAL. He can be reached at jefrober@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1]Jefferson B. Sessions, III, Att’y Gen., Memorandum for All United States Attorneys: Marijuana Enforcement(Jan. 4th, 2018).

[2]German Lopez, Why Marijuana Legalization isn’t Safe Under Trump, Vox (Aug. 7, 2017), https://www.vox.com/policy-and-politics/2017/8/7/16106194/trump-sessions-marijuana-legalization.

[3]Controlled Substances Act, 21 U.S.C. § 812 (2012).

[4]State Medical Marijuana Laws, Nat’l Conf. Of St. Legislatures, (Nov. 8, 2018), http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.

[5]Jeremy Burke & Skye Gould, Michigan is the 10th State to Legalize Recreational Marijuana, Business Insider(Nov. 7, 2018), https://www.businessinsider.com/legal-marijuana-states-2018-1.

[6]Id.

[7]David W. Ogden, Deputy Att’y Gen., Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Use of Medical Marijuana(Oct. 19th, 2009).

[8]Id.

[9]James M. Cole, Deputy Att’y Gen., Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use(June 29th, 2011); James M. Cole, Deputy Att’y Gen., Memorandum for United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29th, 2013); James M. Cole, Deputy Att’y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes(Feb. 14th, 2014).

[10]See James M. Cole, Deputy Att’y Gen., Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use(June 29th, 2011) (describing the growth of the legal marijuana industry in several states as a motivator for issuing this clarifying guidance).

[11]James M. Cole, Deputy Att’y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes(Feb. 14th, 2014). See alsoDep’t of the Treasury Fin. Crimes Enforcement Network, BSA Expectations Regarding Marijuana-Related Business (Feb. 14, 2014).

[12]James M. Cole, Deputy Att’y Gen., Memorandum for United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29th, 2013).

[13]Id.

[14]Id.

[15]Id.

[16]Jefferson B. Sessions, III, Att’y Gen., Memorandum for All United States Attorneys: Marijuana Enforcement(Jan. 4th, 2018).

[17]Dep’t of Justice Office of Pub. Affairs, Justice Department Issues Memo on Marijuana Enforcement (Jan. 4, 2018), https://www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement.

[18]Justice Manual 9-27.001 (West 2018).

[19]Justice Manual 9-2.001 (West 2018).

[20]Cole, supranote 12.

[21]U.S. Att’y’s Off., District of Colo., U.S. Attorney Bob Troyer Issues Statement Regarding Marijuana Prosecutions in Colorado (Jan. 4, 2018), https://www.justice.gov/usao-co/pr/us-attorney-bob-troyer-issues-statement-regarding-marijuana-prosecutions-colorado.

[22]Bruce Kennedy & Alex Pasquariello, One Month After Sessions Marijuana Memo, Where Do U.S. Attorneys Stand on Legal Weed?, The Cannabist(Feb. 5, 2018), https://www.thecannabist.co/2018/02/05/sessions-marijuana-cole-memo-us-attorney/97703/.

[23]U.S. Att’y’s Off., Eastern District of Mich.,Statement of United States Attorneys Matthew Schneider and Andrew Birge Regarding the Passage of Proposal One (Nov. 8 2018),https://www.justice.gov/usao-edmi/pr/statement-united-states-attorneys-matthew-schneider-and-andrew-birge-regarding-passage.

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