The attorney general’s own experts recommend respecting states’ experiments with legalization. He’ll probably ignore them.When Attorney General Jeff Sessions convened his Task Force on Crime Reduction and Public Safety in February, it was widely assumed to be the first step toward a crackdown on the state-level legalization of marijuana. Sessions stacked the task force with federal prosecutors and law enforcement officers, who were expected to endorse an assault on the cannabis industry in states that have signed off on recreational marijuana use. But on Friday, the AP got ahold of the task force’s recommendations and revealed that they weren’t draconian at all. Rather, the group suggested maintaining the current compromise between states and the feds that has allowed marijuana reform to flourish.
In the end, that surprising affirmation of the status quo probably doesn’t matter. Sessions may have failed to produce a pretext for his anti-pot crusade, but he is still preparing to target legal cannabis in at least three of the eight states that have legalized recreational weed. The attorney general has almost certainly known about the task force’s recommendations for weeks if not months, since they were provided to him on a “rolling basis.” Yet even as these findings came in, Sessions was laying the groundwork for a strike against the legalization movement.
The strategy taking shape at Sessions’ Justice Department revolves around an Obama-era policy designed to strike a balance between federal interests and state sovereignty. After Colorado and Washington state voted to legalize recreational marijuana in 2013, Deputy Attorney General James M. Cole issued the so-called Cole memo outlining the DOJ’s new approach. While cannabis is illegal under federal law, Cole directed federal prosecutors not to target individuals, growers, or sellers who comply fully with state regulations. Instead, the Cole memo instructed prosecutors to focus their efforts “on certain enforcement priorities,” including the distribution of marijuana to minors, interstate smuggling, and “drugged driving” as well as “other adverse public health consequences.”
Since then, as more states promulgate and implement cannabis regulations, they have focused on staying “Cole compliant”—prioritizing enforcement in those areas outlined by the memo. Under the leadership of Eric Holder and Loretta Lynch, the Justice Department mostly kept its promise, allowing an increasing number of states to experiment with full legalization. Meanwhile, Congress barred the DOJ from going after medical marijuana, depriving the agency of funds to prosecute users, growers, and sellers of medicinal cannabis who comply with state law. (Twenty-nine states, the District of Columbia, Guam, and Puerto Rico have legalized medical marijuana.)
Sessions has said that “much of” the Cole memo is “valid” and has not publicly expressed interest in rescinding it. But as Reason’s Jacob Sullum has pointed out, the memo is so elastic that it gives prosecutors leeway to target the legal cannabis industry under the pretense that states have failed to comply with Cole. Obama’s DOJ interpreted the memo to encourage a laissez-faire approach to states’ experiments with marijuana reform, so long as they crafted a stringent regulatory framework. But Sessions criticized this approach as a senator, asserting that the agency had construed Cole too leniently. His comments raised fears that, as attorney general, Sessions would reinterpret Cole, allege state noncompliance, and launch a clampdown on legal marijuana.