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Does Sessions' Stance on Marijuana Mean the End to Legal Weed?

By Christopher Coble, Esq. on January 04, 2018 | Last updated on March 21, 2019

As we've noted before, state marijuana laws often conflict with federal marijuana laws, meaning that state efforts to legalize and decriminalize weed have remained subject to federal law enforcement's acquiescence to the will of state voters and lawmakers. During the Obama presidency, the Justice Department refrained from prosecuting federal drug offenses in states that had legalized medical or recreational marijuana.

But those halcyon days for pot patrons may be over. In a memo sent to U.S. attorneys today, Attorney General Jeff Sessions rescinded several Obama-era directives, noting that federal law prohibits the possession and sale of marijuana. So what does this mean for growers, sellers, and buyers in weed-legal jurisdictions?

Federal Marijuana Enforcement

"It is the mission of the Department of Justice to enforce the laws of the United States," Sessions said in a statement, "and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission." Ostensibly, the new guidance paves the way for federal officers and prosecutors to enforce federal bans on marijuana, even in states that have legalized it.

As Sessions added, "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." So while federal prosecutors won't necessarily be restrained from filing marijuana charges, they won't necessarily be required to bring them either.

Federal Prosecutorial Discretion

Sessions' new guidance reinforces the discretion all prosecutors have when filing criminal charges. City, state, and U.S. attorneys are not bound to prosecute every possible charge, but are instead tasked with seeking justice in each case. So prosecutors can decline to file criminal charges, and judging from Sessions' comments, federal prosecutors will retain that discretion in marijuana enforcement.

What it means for states, however, is a lot more difficult to determine. Dispensaries may be more wary about opening, even in legal states, if they're worried about running afoul of federal drug trafficking laws. Investors, banks, and credit unions as well may be reluctant to get involved in the cannabiz with the sword of federal prosecution hanging over their heads. So even while Sessions' new stance on pot may not necessarily mean more prosecutions, it can certainly harsh the mellow of even medical marijuana users.

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