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More evidence the DOJ is about to crack down on marijuana

This blog has previously discussed the possibility that U.S. Attorney General Jeff Sessions was about to crack down on marijuana offenses.

Under federal law, marijuana is illegal for any use. Prosecutors, however, have the authority not to prosecute when appropriate and in the interest of justice.

The previous administration had taken a hands-off approach to marijuana, allowing state prosecutors to handle most minor marijuana offenses. This was especially true in states where certain types of medical cannabis have been legalized, and where marijuana is legal for recreational use.

However, the interests of justice apparently cannot overcome what Sessions calls "a return to the rule of law." He recently issued new policy guidance to the U.S. Attorneys who prosecute federal crimes. In that memo, Sessions directed the prosecutors to follow "well-established principles" and to "weigh all relevant considerations," such as:

  • The Attorney General's law enforcement priorities
  • The relative seriousness of the offense
  • The deterrent effect of prosecution
  • The cumulative effect of certain crimes on the community

The memo specifically rescinded all policy guidance on marijuana given by the previous attorney general, meaning that no special consideration would be given to whether cannabis has been fully or partially legalized in a particular state.

"In the Controlled Substances Act, Congress has generally prohibited the cultivation, distribution and possession of marijuana....It has established significant penalties for these crimes," wrote Sessions. He added that the CSA and other statutes "reflect Congress's determination that marijuana is a dangerous drug and that marijuana activity is a serious crime."

Is it fair to say that Congress has determined that marijuana is dangerous, or that marijuana activity constitutes a serious crime? Yes and no. The drug is certainly included in Schedule I of the Controlled Substance Act of 1970, the most serious schedule, and that has not changed despite public pressure.

However, it is also fair to say that Congress has been allowing states to decide whether they consider marijuana dangerous, and the vast majority of states have decriminalized or legalized cannabis to varying degrees. Two U.S. territories, the District of Columbia and 29 states have legalized some form of medical cannabis, while eight states have fully legalized the drug. An additional 14 states, the District of Columbia and the U.S. Virgin Islands have decriminalized marijuana, such as by reducing possession offenses from misdemeanor-level crimes to citation-level offenses.

The effect of Sessions' new policy guidance is not yet clear. We will simply have to wait and see whether legal or low-level cannabis users begin being federally prosecuted.  But this, at minimum, seems a continuation of Sessions' long obsession with marijuana prohibition.

As recently as 1996 he supported a bill in Alabama that would have imposed a mandatory death penalty on second-time marijuana traffickers who made the minimum wage in drug proceeds (then only $4.25/hr).  (H.B. 242, S.B. 291). The law clearly would have been unconstitutional since the Supreme Court had ten years earlier banned mandatory death sentences and in 1977 had ruled the death penalty "grossly disproportionate" and "excessive" even in cases of rape. The Alabama legislature never passed the law, but Sessions' support for the bill was remarkable nonetheless, coming from a lawyer who had risen to be attorney general of a state.

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