THE FEDS, MEDICAL MARIJUANA, AND NEW “GUIDELINES”
In a memo from Deputy Attorney General, James Cole to “All United States Attorneys,” dated August 29, 2013, he states that it is intended to update the “guidance” provided in 2009 and 2011 “concerning marijuana enforcement under the Controlled Substances Act (CSA).”
However, the position taken by the federal Department of Justice, Office of the Attorney General, appears to be ambiguous regarding the “enforcement” of federal drug laws and it places substantial responsibility on those states and local governments authorizing the use of marijuana in their jurisdictions.
The memo states that the update was precipitated by the number of “state ballot initiatives that legalize under state law the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.” (Emphasis added.) [Ed.: the full text of the AG’s memo is reproduced at the end of this client alert.]
The AG points out that “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartel.”
The Deputy Attorney General states, “The Department is . . . committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way.” (Emphasis added.)
The memo sets forth eight “bullet points” which are described as “enforcement priorities.” Among them are: “preventing distribution to minors;” preventing “diversion of medical marijuana from states where its legal . . . to other states;” preventing “drugged driving;” and preventing the cultivation, possession, or use of marijuana on federal property.”
The AG continues at that point to say, “outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”
The memo then states, “the enactment of state laws that endeavor to authorize marijuana production, distribution, and possession, by establishing a regulatory scheme for these purposes affects this traditional joint federal-state approach to narcotics enforcement.” (Emphasis added.)
Responsibility is then placed on state and local law enforcement to deal with enforcement issues locally. “The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety …. ”
[Editorial Comment: The AG’s memo is, obviously, acknowledging that states are passing laws authorizing activities which are classified as felonies under the Controlled Substances Act (CSA), and those actions are not being challenged by the federal government.
The memo refers to states “legalizing” marijuana, but it must be clearly understood that “legalizing” applies only to state law. As the AG states in the memo, “state ballot initiatives that legalize under state law . . . .”
Reference to “legalize” is, nonetheless, misleading since states can choose to “decriminalize” activity regarding marijuana, under their own state’s laws, – it cannot be “legalized” by states since it is still felonious activity under federal law.]
HOW THIS AFFECTS YOUR AGENCY
The decision to tacitly approve authority for states to permit and regulate marijuana in their jurisdictions, obviously, bodes poorly for those state and local jurisdictions which don’t want marijuana to be officially sanctioned in their community.
The AG states that the memo is merely intended “as a guide to the exercise of investigative and prosecutorial discretion.” It is, however, the discretion of the Office of the Attorney General to select cases for prosecution.
The Deputy AG points out that “neither the guidelines herein nor any state or local law provides a legal defense to violation of federal law, including any civil or criminal violation of the CSA.” That is important to note, and absolutely correct but, from a practical perspective, if there will be relatively little enforcement of federal law, they are words without substance.
We assume that the Attorney General is aware of the fact that many local prosecutors won’t file charges on those cases. The 2009 memo from the Attorney General is often used by defense counsel to argue that the memo impliedly said that it was OK for someone to cultivate marijuana, if he/she was in compliance with state laws. It is, often, a successful argument by defense counsel.
The analysis of the guidelines, and where we are in the enforcement of the law, must be done without regard to one’s personal opinion regarding laws which prohibit or permit marijuana use. The issue is the law!
At this moment, the federal government has laws on the books (CSA) which are in direct conflict with laws at the local level. Asking law enforcement officers to allow behavior which is defined as, not only, illegal, but a felony is contrary to their beliefs and oaths. Only Congress can “fix” the conflict and, so far, it refuses to do so.
As with all legal issues, it is important to seek out the advice and guidance from your legal counsel before attempting to “rely” on the AG’s memo. This is a very convoluted area of the law. We have attached the AG’s memo to this for your convenience. As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney – client relationship.
MEMORANDUM FOR ALL UNITED STATES ATTORNEYS
FROM: James M. Cole
Deputy Attorney–General
SUBJECT: Guidance Regarding Marijuana Enforcement
In October 2009 and June 2011, the Department issued guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act (CSA). This memorandum updates that guidance in light of state ballot initiatives that legalize under state law the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale. The guidance set forth herein applies to all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions, concerning marijuana in all states.
As the Department noted in its previous guidance, Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. The Department of Justice is committed to enforcement of the CSA consistent with those determinations. The Department is also committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way. In furtherance of those objectives, as several states enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
These priorities will continue to guide the Department’s enforcement of the CSA against marijuana-related conduct. Thus, this memorandum serves as guidance to Department attorneys and law enforcement to focus their enforcement resources and efforts, including prosecution, on persons or organizations whose conduct interferes with any one or more of these priorities, regardless of state law.’
Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.
The enactment of state laws that endeavor to authorize marijuana production,
distribution, and possession by establishing a regulatory scheme for these purposes affects this traditional joint federal-state approach to narcotics enforcement. The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice. Jurisdictions that have implemented systems that provide for regulation of marijuana activity
These enforcement priorities are listed in general terms; each encompasses a variety of conduct that may merit civil or criminal enforcement of the CSA. By way of example only, the Department’s interest in preventing the distribution of marijuana to minors would call for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors; when marijuana or marijuana-infused products are marketed in a manner to appeal to minors; or when marijuana is being diverted, directly or indirectly, and purposefully or otherwise, to minors.must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.
In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set forth above. Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for. In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity. If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.
The Department’s previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above.
As explained above, however, both the existence of a strong and effective state regulatory system, and an operation’s compliance with such a system, may allay the threat that an operation’s size poses to federal enforcement interests. Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities listed above. Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system. A marijuana operation’s large scale or for-profit nature may be a relevant consideration for assessing the extent to which it undermines a particular federal enforcement priority. The primary question in all cases — and in all jurisdictions — should be whether the conduct at issue implicates one or more of the enforcement priorities listed above.
As with the Department’s previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA. Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances. This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution. Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.
cc: Mythili Raman
Acting Assistant Attorney General, Criminal Division
Loretta E. Lynch
United States Attorney
Eastern District of New York
Chair, Attorney General’s Advisory Committee
Michele M. Leonhart Administrator
Drug Enforcement Administration
H. Marshall Jarrett Director
Executive Office for United States Attorneys
Ronald T. Hosko
Assistant Director
Criminal Investigative Division Federal Bureau of Investigation