Will the Recently Issued Sessions Memorandum Have a Chilling Effect on States’ Plan for Legalization of Medical and Recreational Marijuana?

During the Obama administration, a memorandum issued by then deputy attorney general James M. Cole in 2013 dealt with the issue of federal prosecution of alleged crimes involving marijuana in states where it was a legal substance either for medical use, recreational use, or both. The memo seems to grant broad latitude to exercise prosecutorial discretion in states where marijuana had been legalized. The memo was interpreted as a hands-off edict rather than the guidance it was supposed to embody.

For several years, the states that chose to legalize the use of marijuana for either medicinal or recreational purposes were able to co-exist peacefully with the federal mandates as long as they stayed within the confines of the laws existing in their individual states. Marijuana has long been used by various individuals and medical providers to assist individuals with health conditions that were not responsive to contemporary medicine.

On January 4, 2018, Attorney General Jefferson B. Sessions, III issued a new memorandum to all United States prosecutors regarding marijuana enforcement. The memorandum governs how federal prosecutors may handle crimes involving marijuana use/misuse under federal guidelines. The memorandum states in pertinent part as follows: “In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well established principles that govern all federal prosecutions.” The memorandum goes on to state: “Given the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.”

Federal prosecutors can now weigh factors such as seriousness of the crime, whether prosecution would defer future criminal activity, and the combined effect on the community of similar crimes. The new memorandum permits the Justice Department to undermine the states’ decision making powers. Finally, there is a consensus that the recently issued memo is out of step with public opinion and contrary to good public health and public safety policy. The ambiguous nature of the memorandum leaves open to discussion whether federal prosecutors will act in a uniform manner or if it will be a free for all to administer and interpret law as they see fit, given the open nature of the memorandum.

If the import of the memo is that federal prosecutors may prosecute marijuana related crimes without regard to the law currently in existence in a particular state, it may cause many states who were exploring the notion of extending legalization of marijuana to include more medical categories and conditions to legalization of marijuana for recreational use to abandon those studies until such time as the federal response to alleged marijuana crimes is less amorphous and more stable.

New York legalized marijuana for limited medicinal purposes in 2014. They maintain strict regulations. Approximately 40,000 people are registered as certified patients in the program. Recreational use has not been legalized by New York State at this juncture. However, Governor Cuomo has expressed an interest in putting together a group to evaluate the possibility of legalizing marijuana for recreational use.

In New Jersey, the recently elected governor, Governor Phil Murphy campaigned on a platform for the legalization of marijuana in the state of New Jersey for both medicinal and recreational uses.

With the newly issued memo, it is not clear whether federal prosecutors will be seeking out marijuana offenders, including businesses that are legally operating in the state.

Chronic pain has recently been listed as one of the conditions certified for the use of medicinal marijuana. Practitioners have opined that replacing medicinal marijuana in place of opioids would possibly reduce the dependence on the pain medications and reduce the serious effects of what has now been named an epidemic.

In New York State, workers compensation claimants are many times taking opioid medications on a long term basis to control chronic pain. This reliance on opioids is fast becoming a problem where the claimants are in fact becoming addicted to the very medication that is supposed to be assisting with recovery. This memo will have a chilling effect on the use of medicinal marijuana as a substitute for opioid medications, which has obviously become an epidemic in this country.

Finally, the issuance of the new memorandum has many calling for action from Congress. While the Attorney General can offer guidance on enforcing the law, Congress is the entity which has the power to create and implement new laws. Many have suggested that members of Congress, specifically from those states where marijuana has in some way been legalized, come together to offer a bill for consideration; supporting the legalization of marijuana for both medicinal and recreational purposes and having it removed from the Controlled Substances list so that states that have already legalized marijuana would be covered by a federal regulation mirroring the state law.

Only time will tell how the Sessions memo will guide federal law enforcement and prosecutors in how they treat alleged marijuana crimes in states where the legality of the substance has already been decided. Will it have a chilling effect on state jurisdictions and their laws concerning medical marijuana, recreational and/or both?


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