Attorney General Jeff Sessions hinted Wednesday that the Justice Department may take a tougher stance on recreational marijuana in the near future, a change in policy that would have a significant impact on the five states that already allow the drug to be sold for more than medicinal purposes.
California is scheduled to join that group on Jan. 1.
Sessions and other DOJ officials previously indicated they would continue the policy laid out by the department under former President Barack Obama, which in essence allows state officials leeway in how they deal with the drug as long as they meet certain standards, like keeping cannabis out of the hands of minors, keeping it from crossing into states where it isn’t legal and preventing drugged driving.
Marijuana, however, remains illegal under federal law, and there was always the possibility the Trump administration could crack down.
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“In fact, we’re looking at that very hard right now, we had a meeting yesterday and talked about it at some length,” Sessions said at a press conference Wednesday. “It’s my view that the use of marijuana is detrimental, and we should not give encouragement in any way to it, and it represents a federal violation, which is in the law and is subject to being enforced.”
“We are working our way through to a rational policy, but I don’t want to suggest in any way that this department believes that marijuana is harmless and people should not avoid it,” the attorney general added, noting that DOJ was also considering how to deal with opiods and other drugs.
Ian Prior, principal deputy director of public affairs at DOJ, declined to comment on what a new “rational policy” might look like or when it might be enforced.
As of January 2018, recreational marijuana will be legal in Alaska, California, Colorado, the District of Columbia, Maine, Nevada, Oregon and Washington state. It will become legal in Massachusetts in July. In some of those jurisdictions, cannabis has become a significant industry. In Colorado, for example, 2016 sales totaled $1.3 billion and provided the state with nearly $200 million in additional tax revenue, according to the state Department of Revenue.
California officials are loathe to speculate on the legal headaches the federal government could create for their burgeoning cannabis market. “It’s understandable that those investing money into their businesses would be concerned about what may happen, but the Bureau has been so focused on the incredible amount of work we’ve had to do to get ready for January 1 that we really can’t focus on hypothethicals,” emailed Alex Traverso, the communications director for the state’s Bureau of Cannabis Control, which has been tasked with implementing the new law.
State Treasurer John Chiang has been proactive in trying to ease concerns around one major problem for marijuana sellers created by the clash of federal and state law: access to banking services. Most cannabis entrepreneurs are forced to operate almost entirely in cash because banks don’t want to take the legal risk of providing them with accounts.
That in turn makes the industry a target of violent crime, makes collecting taxes more difficult and causes problems in identifying legal versus illegal sales of the drug. Chiang’s office has been working to create a database that can help financial institutions comply with the strict anti-money laundering and anti-terrorism know-your-customer rules laid out by the Cole memo — the Obama-era policy applied to states that legalize recreational marijuana — as well as guidance from the Treasury Department.
Some have hoped that Congress would take steps to legalize marijuana, but that doesn’t appear to be in the offing anytime soon. Sen. Cory Booker, D-N.J., introduced the latest bill to legalize marijuana at the federal level in August. The bill has no co-sponsors and has not passed any committees.
Were DOJ officials so inclined, they could work with the Department of Health and Human Services to reclassify marijuana so it is no longer a Schedule I drug; that status indicates the federal government recognizes no medical use for a substance and believes it has a high potential for abuse. Congress could also reclassify the drug. Sessions said in testimony before a House committee in November that he did not believe marijuana was as dangerous as heroin, which is also considered a Schedule I substance.
On Wednesday, Acting Drug Enforcement Administrator Robert Patterson announced officials were submitting fentanyl substances for reclassification under Schedule I. Certain types of fentanyl, an opiod, are currently listed as a Schedule II, meaning they’re not considered as dangerous as marijuana under the law, though Sessions called fentanyl “the number one killer drug in America.”
Sessions’ comments Wednesday suggested a shift from some of his recent statements.
“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,” Sessions said in testimony to the House Judiciary Committee in November, referring to the Obama-era attorneys general Eric Holder and Loretta Lynch.
But he may have presaged stricter federal enforcement when, last May, he ordered federal prosecutors to pursue the most severe charges and penalties possible against defendants in drug cases, a sharp shift from the policy of his Democratic predecessors.
States that have already legalized recreational marijuana haven’t encountered federal interference yet. Officials in Alaska, Colorado, Oregon and Washington sent a letter to Sessions and Secretary of the Department of the Treasury Steve Mnuchin in April advocating that they and federal officials continued to work under the parameters of the Cole memo and asking that the Trump administration engage with them before making changes.
Sessions responded to them in July, saying that DOJ remained committed to enforcing federal law on marijuana “in a manner that efficiently applies our resources to address the most significant threats to public health and safety.” But he also cited studies indicating that each of the four states might not be meeting the standards of the Cole memo.
The four states wrote back separately in August, all of them disputing the data Sessions used. In Washington, for example, Sessions wrote that according to a report, 61.9 percent of drivers in the state do not believe marijuana makes a difference in their driving ability. Washington Gov. Jay Inslee and Attorney General Bob Ferguson charged that Sessions had misread the report: It surveyed 893 drivers and found that 97 of them said they had previously used pot within two hours of driving; of those, 61.9 percent said they didn’t believe it affected their driving ability. But that number only represents 6.7 percent of all drivers in the survey.
Rick Garza, the director of Washington’s Liquor Cannabis Board, said following the August letter some state and Justice Department officials met to discuss the issue. He said the three-hour meeting was a “healthy discussion” with a “positive, open dialogue,” but that DOJ officials were still reluctant to address how they planned to handle the issue in the future.
“They weren’t going to share too much about a change in policy, or no change in policy,” Garza said, adding: “I thought it was going to be a bit more adversarial, to be honest with you, but it wasn’t like that.”
In Nevada, where recreational marijuana sales were legalized for anyone 21 and older on July 1, Stephanie Klapstein, spokeswoman for Nevada’s Department of Taxation, said that the Cole memo was “the most recent guidance we have on this from the Department of Justice, so unless that changes we’re following that,” Klapstein said.
California officials also plan to operate under the constructs of the Cole memo. “We’ve certainly tried to extend our intent that we want to work with the administration in good faith,” Chiang told McClatchy. Chiang said that early in 2017, California along with other states that have legalized marijuana spoke with Justice Department to try and reach an “understanding as to what they will permit and what they would find objectionable.” But those officials were noncommital at the time, and his office has had no further contact with the administration.
Chiang said that while it’s been somewhat reassuring to see Trump’s Justice Department has not acted against other states’ cannabis markets, “we know that could change in an instant.”
Beau Kilmer, co-director of the RAND Drug Policy Research Center, said it would be “very difficult” for the Justice Department to shut down the state-regulated recreational marijuana industry at this point. There are about 7,000 domestic agents of the DEA, many of whom are currently dealing with the opioid crisis, Kilmer said. Sessions could target major players to send a message or even shape the market, such as going after those who sell a high-potency product or engage in advertising.
“That would have a major chilling effect,” Kilmer said.