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Sessions Unleashes the Hounds on Pro-Pot States

Attorney General Jeff Sessions said Thursday he is effectively unleashing the hounds of the federal government on states that allow for the legalized sale of marijuana, ending a hands-off approach by the previous administration and ignoring promises made by his own boss, President Donald Trump.

In a 2016 interview with a local reporter in Colorado, which legalized recreational cannabis five years ago, then-candidate Trump insisted [1] he would not allow his AG to override state law by prosecuting marijuana businesses and growers. “I’m a states person. I think it should be up to the states, absolutely,” he told Brandon Rittiman from Channel 9 News at the time.

Yet officials suggested to reporters Thursday that businesses and growers in legalized states have gotten too comfortable and that the primacy of state law means very little in Washington. Effectively, Sessions has rescinded a 2013 guidance [2] issued by then-Deputy Attorney General Jim Cole that limited prosecutions [3] as along as individuals and businesses were operating under their state’s laws.

“The Cole memo as interpreted created a safe harbor for the marijuana industry to operate in these states. There is a belief that that is inconsistent with what federal law says,” a senior Department of Justice official, speaking on condition of anonymity, told Politico [2]“I can’t sit here and say whether it will or will not lead to more marijuana prosecutions,” the official continued. “We believe U.S. attorneys’ offices should be opened up to bring all of these cases that are necessary to be brought.”

What this does is create an inevitable stand-off over the 10th Amendment rights [4] of seven states and the District of Columbia that have fully legalized cannabis, including California, which officially made pot legal on January 1. [5]

Another 21 states have medical marijuana laws on the books, including red states like Arkansas, which passed its ballot referendum in 2016, and Florida, which put its own measure over the top by a whopping 71 percent at the polls. The tone set by Sessions today puts people in those states on notice as well.

David Kopel [13], an adjunct professor of constitutional law at the University of Denver and research director of the Independence Institute, said Sessions’ announcement is sending a shock wave across Colorado, which not only changed its laws, but amended its state constitution to legalize pot. As of July, the state had brought in $505 million in cannabis-related taxes and fees since sales officially began in 2014. Altogether, marijuana sales in North America totaled some $6.7 billion in 2016 [14]. Before Sessions’ announcement, experts predicted the U.S. market might reach $50 billion by 2026. To say this is an established industry with thousands of people and livelihoods depending on it would be an understatement.

“This is a direct betrayal of President Trump’s campaign promise, which he made in Colorado,” Kopel told TAC on Thursday. He pointed to the chill this would put on businesses, landlords, and particularly banks that are still hesitant to work with cannabis clients [15], despite the millions of legal dollars changing hands.

While the federal government doesn’t have the resources to go after every business or cultivator, he noted, “It only takes a few prosecutions to destroy the legal industry in a given state. In fact, they don’t even need to convict, they just need to start sending threatening letters to landlords.”

Sessions drew a swift and angry response [16] from Senator Cory Gardner, R-Colo., who said the AG was “trampling the will of the voters.” Gardner suggested Sessions had assured him of a continued “hands-off” approach during the former Alabama senator’s own nomination hearing. He threatened to play hardball, even putting a hold on all DOJ nominees, including Colorado’s interim U.S. Attorney Bob Troyer [17], if Sessions proceeds down this path.

“I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation,” Gardner tweeted Thursday.

Republican Senator Lisa Murkowski, whose home state of Alaska has legalized recreational marijuana, also weighed in with a statement [18], saying Sessions’ announcement—which she had repeatedly warned him against making—was “disruptive to state regimes and regrettable.”

It is not as if this is altogether unexpected. As Senator, Sessions was a classic law-and-order Republican, who since his confirmation as Trump’s AG, has boosted private prisons,  [19]reinstated the federal asset forfeiture program, [20]and moved to lengthen drug sentences [21], all three of which have roiled civil libertarians and criminal justice reformers alike.

Still, former Republican Maryland state delegate Don Murphy, who now works in conservative outreach for the Marijuana Policy Project, [22] said the timing of the AG’s move, presumably sanctioned by Trump, is odd considering the populist wave in favor of decriminalizing marijuana across the country—not only in blue states, but places like Arkansas, the first Bible Belt state to legalize medical marijuana, and with 53 percent of the vote. Today, 29 states have some sort of law allowing for at the very least, medical marijuana. Right now 12 are poised to consider new laws in 2018. New Jersey’s Governor Elect Phil Murphy has pledged to sign legislation [23] legalizing adult recreational use within 100 days of his new term.

“What Jeff Sessions wants to do is roll back all of that. This is a very bad thing and it’s very unnecessary, considering what the president said publicly and that we are dealing with an opioid crisis right now,” Don Murphy, who actually served as a delegate for Trump and volunteered on his campaign, told TAC. “I want the Trump administration to stand by its promises.”

Murphy has been working on getting a federal medical marijuana bill passed since 2000. His legislation has support on both sides of the aisle, he insists, but members who oppose it have kept it from coming to a floor vote. What supporters have achieved is to pass a 2014 rider to the annual spending bill that has prevented federal funds from being used to prosecute medical marijuana cases in states that allow it. However, it is not clear whether the so-called Rohrabacher-Blumenauer amendment [24] will pass in the current spending bill.

If not, that will leave even more people and businesses vulnerable. The Supreme Court, weighing in on this in 2005 [25], ruled six to three in favor of the federal government’s ban superseding state medical marijuana laws. Congress would have to change the law for states to be entirely free of federal intervention. If not, people who have depended on cannabis and cannabis products to ease suffering—whether it be from epileptic seizures and the side effects of chemotherapy, or chronic pain and glaucoma—may soon be at risk. This includes veterans, who have been choosing cannabis over prescription pills [26] to treat symptoms of post traumatic stress disorder (PTSD).

“What I think may happen is people who otherwise kept their heads down are going to have to stand up and speak out,” charged Murphy.

“This needs to be a state choice. The 10th Amendment says what it says,” he said, noting that as a conservative he’s been able to appeal to other Republicans on states’ rights grounds alone. “I had support from members from Kansas, from Utah… not because they were marijuana people but they were 10th Amendment people. Jeff Sessions doesn’t seem to agree with that and I think it’s all going to come to a head soon.”

Kelley Beaucar Vlahos is executive editor of The American Conservative. Follow her on Twitter @Vlahos_at_TAC [27]

73 Comments (Open | Close)

73 Comments To "Sessions Unleashes the Hounds on Pro-Pot States"

#1 Comment By Daniel (not Larrison) On January 6, 2018 @ 8:24 am

I love how Trumpistas waxed eloquently how he was keeping a campaign promise by recognizing Jerusalem as the capital of Israel…but are utterly silent about his promise to not prosecute marajuana violations.

It’s almost as if Trump is an incoherent blabbermouth with no control over his own administration…which, Wolffe’s book or not, we already knew.

#2 Comment By Sad! On January 6, 2018 @ 9:42 am

7 billion in sales. What a sad, decadent country.

#3 Comment By Stephen On January 6, 2018 @ 11:40 am

“Now it’s been legalized in states and countries, and we can see the effects: More money in the treasury, fewer people in jail, and a way to wean addicts away from opioids.”

The main effect I see is Denver gradually turning into a dumpster.

I do NOT want the Feds making our laws for us in Colorado. I just wish the majority here had the good sense to overturn the legalization. The stuff is not harmless, and I predict the overall impact will be worse than alcohol ever could be. The signs are appearing steadily here in Colorado, but they are waived away by reference to all that precious revenue. It’s not worth it.

#4 Comment By Timid On January 6, 2018 @ 2:03 pm

Dear Executive Branch,

Please do not enforce the laws we pass.


The Legislative Branch

#5 Comment By grin without a cat On January 6, 2018 @ 3:05 pm

Attorney General Sessions’ memorandum to all US Attorneys leaves a lot of ambiguity about whether the “hands-off approach” has been ended.


In deciding which marijuana activities to prosecute . . . prosecutors should follow the well-established principles that govern all federal prosecutions [which require them] to weigh all relevant considerations including . . . the particular impact of particular crimes on the community.

Given the Department’s well-established principles, previous nationwide guidance specific is unnecessary and is rescinded immediately.

It’s up to the US Attorneys and their prosecutors to use their discretion whether to go after individuals who are adhering to state law and are otherwise not causing trouble. I am going to predict that no hounds will be let loose.

#6 Comment By Dale McNamee On January 6, 2018 @ 5:28 pm

Old West’s post was excellent !

Especially when he mentioned the 20 & 30 year olds having Medical Marijuana cards…

Medical Marijuana (THC ) is available in pills, capsules, tinctures to treat the pain, but there’s no “high”, which is what is really being sought…

Also, those who want legalization should pony up and pay for all of the additional social problems that it will cause… Not me !

I worked for a couple of years at a company where finding anyone totally sober was a miracle… Guess who had to “pick up the slack” ? Me !

Guys were taking up as they pulled into the parking lot at 6:30-7:00am…

And toked up during breaks and at lunch and after work…

I also had a neighbor who did pot every day… When he got his weed and associated paraphernalia out, I’d leave… And I left him alone…

Then, he and his friends started calling me “narc” which I ignored… Then, they vandalized my car and my response was brutal and short…

Later on, this same neighbor was busted for molesting his next door neighbor’s son…

So don’t tell me about how good marijuana is…

BTW, I don’t drink because I was on the receiving end of “one too many” growing up and watching my parents and relatives ruin every birthday and holiday for me and my sisters…

As for opioids… I have asked my doctor for alternatives that kill the pain and nothing else… I’m also researching the alternatives…

I also suffer from diabetic neuropathy in my feet and legs… I could have taken Lyrica but didn’t like the possible side effects and asked if there was an alternative that controlled the pain and nothing else… He prescribed Gabapentin and I have been pain free for the past 5 years !

Again, why is “medical marijuana” necssary ?

#7 Comment By EliteCommInc. On January 6, 2018 @ 9:56 pm

“Again, why is “medical marijuana” necssary ?”

it’s not.

#8 Comment By Rick LaBonte On January 7, 2018 @ 5:43 am

Baloney. Sessions allows for discretion – removing the Obama policy of DIRECTING prosecutors to IGNORE
federal law.
Congress needs to face reality and admit the futility of federal marijuana prohibition. As long as laws are on the books, they have to be enforced. Otherwise get rid of them.

#9 Comment By JeffK On January 7, 2018 @ 7:51 am

Dale McNamee, I think you suffer from more than diabetic neuropathy in your feet and legs. Just sayin’…..

#10 Comment By I On January 7, 2018 @ 8:18 am

Marijuana laws will be revived for their original purpose, providing a convenient reason to arrest those the administration fears.

#11 Comment By Oregoncharles On January 7, 2018 @ 3:13 pm

““The Cole memo as interpreted created a safe harbor for the marijuana industry to operate in these states. There is a belief that that is inconsistent with what federal law says,” ”
Which is true. The only real solution is to change the federal law, which is the reality we’re approaching. On the other hand, Sessions’ action precipitates a head-to-head conflict with a large number of states, violates promises given, and defies the known will of 64% of the people. Politically, it’s idiotic, which isn’t too surprising.

Sessions has thrown the brown stuff at the fan; the resulting mess should be both clarifying and, hopefully, productive. If we play it right, we can end Prohibition as a result.\

You’d think we would have learned something the first time around. And alcohol is actually harmful, as pot demonstrably is not, despite some of the panicky, dishonest claims in the comments.

#12 Comment By Oregoncharles On January 7, 2018 @ 3:33 pm

Returning to point out the hidden agenda: ” As Senator, Sessions… reinstated the federal asset forfeiture program,” which is the real motive for his new memo. There are millions of dollars in cash rolling around in the pot shops, to say nothing of fortunes in readily marketable merchandise. The drug warriors must be salivating at the prospect of such a lucrative legalized theft.

Oregon banned asset forfeitures short of conviction years ago, in an initiative that was also supported by conservatives, because of property rights. Other states can do that, too. But it doesn’t affect the federal drug warriors. However, they usually depend on local co-operation; that can be withheld.

Prohibition is a fundamental violation of personal liberties, as well as the 10th Amendment, in this case. Conservatives have the same stake in fighting it that progressives do.

#13 Comment By David Giza On January 7, 2018 @ 5:57 pm

I agree with Dale McNamee’s post.

#14 Comment By Clyde Schechter On January 7, 2018 @ 6:00 pm

“Again, why is “medical marijuana” necssary ?”

That’s a very good question. The truthful answer is that we don’t really know if it is, or, if so, what it is really good for. The amount of decent-quality research on THC and on cannabis (which may include other active ingredients) is grossly inadequate. Much of the use it is currently put to is only supported by anecdotes or low quality research studies. And as Dale McNamee notes, there is also strong anecdotal reason to believe that some appreciable fraction of “medical” marijuana use is just disguised recreational use.

Compared to Dale McNamee, I think I am more open to the possibility that legitimate medical uses for marijuana exist, and just have not yet been adequately studied. The blame for the inadequacy of the research lies squarely with the DEA. Federal drug control laws do permit research on marijuana under tightly controlled conditions. But the laws are excessively restrictive and the DEA has always opted to interpret them in the most restrictive way possible. While I am quite wary about safety issues with long-term large-scale use of marijuana, it is clear that short-term limited use is safe enough to permit well-designed research studies on the effects of THC and cannabis. While I am certainly no libertarian, I do believe this is one area where government regulation of research has been unreasonably strict and has kept us in a state of abysmal ignorance about questions that have no taken on great practical importance for public health.

It is also important to note that with wide-scale legalization and industrial marketing of marijuana, it will become extremely difficult, if not impossible, to do good quality research on its medical effects. In a few decades we may find ourselves facing the same debacle we faced with tobacco in the last half of the 20th century.

If I were able to make the laws governing marijuana at this time, I would decriminalize possession of small quantities, and growing and selling of small quantities, but retain felony-level prohibition of industrial scale marijuana farming and sales. All advertising would be banned completely. I would seek to amend the drug control act and the DEA’s regulations so that research on marijuana could be readily carried out by responsible and capable researchers using scientifically sound methods.

#15 Comment By Clyde Schechter On January 7, 2018 @ 6:03 pm

“abysmal ignorance about questions that have no taken on great practical importance for public health.”

I meant “abysmal ignorance about questions that have NOW taken on great practical importance for public health.”

#16 Comment By Siarlys Jenkins On January 8, 2018 @ 12:06 pm

I just wish the majority here had the good sense to overturn the legalization. The stuff is not harmless, and I predict the overall impact will be worse than alcohol ever could be.

I don’t have any use for the stuff, legal or not. And taking any recreational drugs, whether marijuana, alcohol, tobacco, whatever, causes a lot of damage. The truth is, if people want it badly enough, criminal laws aren’t really going to stop it.

Carrie Nation was not wrong about the evils of demon rum, but the evils of Prohibition were far greater. And there are responsible conoisseurs of fine wine… our gracious host among them. Finding ways to control, e.g., use when driving, working with machinery, etc. is also a pain, but legal sales and use with some taxation and regulation seems to be the least bad option.

“Again, why is “medical marijuana” necessary ?”

There is cannabidiol for one… a derivative which has a well documented use for treating siezures. Chemotherapy patients report plausible if not credible lessening of side effects. Clyde Schecter’s summary makes sense. And perhaps we should prohibit importation — tight border controls and a relatively low cost open market domestically should make it insufficiently rewarding for Mexican gangs.

#17 Comment By Zgler On January 8, 2018 @ 1:16 pm

Prohibition doesn’t work and it just gives money to organized crime. If Sessions is really anti-crime he’ll give up this foolish antiquated crusade.

#18 Comment By EliteCommInc. On January 8, 2018 @ 8:54 pm

“And alcohol is actually harmful, as pot demonstrably is not, despite some of the panicky, dishonest claims in the comments.”

I am no more panicked about marijuana than I am alcohol. Understanding the consequences depending upon how popular it becomes isn’t panic, understanding reality.

Alcohol has been around long enough that we at least have some tools to manage it’s impact. no. It is not the end of the world. But pretending a substance that impairs judgement is harmless is dangerously careless. Crying for more freedom by advocating something that removes accountability should be a hard case to make.

The fact the advance is actually becoming more prevalent is troubling. as is the contention that people are going to do it any way, so why bother outlawing it. I think history suggests that when outlawed, less people do it than might otherwise makes sense.

#19 Comment By Hunter C On January 8, 2018 @ 9:48 pm

Out of all of the prohibitionist arguments on this comment thread, particularly the amusingly irrelevant anecdotal argument just recently posted up there (“My neighbor was a pot smoker and then later on it turned out he was a child molester. Coincidence? I THINK NOT!”), I’d like to hear some candor from those making them.

Since this is an issue on which the generational divide is the most stark, statistically even moreso than gay marriage, I ask: Dale McNamee, ‘Old West’, Stephen: Without revealing any other personal details about yourselves, who among you are over 50 years old? What about over 60?

“I was raised to believe that using this substance is a moral failing” does not justify a sweeping international crusade in the modern day. You need to make a better argument than that. You need to make a better argument than “I personally think it is associated with negative character traits.” You need to make a better argument than “I don’t care for individuals who use it, or for the sort of people who use it.”

IF you think that those are acceptable reasons for taking away the freedom and livelihoods of tens of thousands, if not hundreds of thousands of your fellow citzens, then quite frankly you have no cause for indignation when those fellow citizens of yours remark that they eagerly await a time when your generational cohort have died of old age.

#20 Comment By BadZ On January 9, 2018 @ 4:51 am

Meanwhile, you can now buy these in Swiss supermarkets.
The sky has not yet fallen.

#21 Comment By Hudson Luce On January 9, 2018 @ 6:54 pm

It just depends on whom you want to give the money to, the Sinaloa cartel and the DEA, or local producers and taxes to the states. It’s going to come in, anyway. And incarcerating people costs $40,000 a year in direct costs, takes them out of productive employment, makes further employment impossible for occupations requiring licensing – which is now a very large number, not counting the amount of money taken out of productive use and forfeited to the government. Drug Prohibition is not cost-effective and never has been.

#22 Comment By Carolyn Carter On January 9, 2018 @ 7:45 pm

Jeff Sessions needs to worry about prosecuting hillary, Obama and all of those other crooks in DC.He needs to leave marijuana alone.I have chronic pain that I have dealt with for years.I’ve quit taking opiates that were perscribed for me, because marijuana helps my pain and isn’t addictive like the opiates that I was on for years.President Trump promised us before the election that he would leave it up to the States.If he breaks his word I won’t vote for him again in 2020.He needs to make sessions leave the marijuana issue alone.I am a sixty two year old woman.I don’t eat or smoke marijuana for the buzz,I do it because it helps my pain and keeps me off of opiates.

#23 Comment By Me On October 8, 2018 @ 2:01 pm

“Sad! says:
January 6, 2018 at 9:42 am

7 billion in sales. What a sad, decadent country.”

I know this is a bit late but seriously? That’s nothing. I just looked up annual alcohol sales and it’s at 70 Billion. You want to talk about a Sad, and decadent country. There you go.