Authored by: Brian P. Sharkey (Porzio, Bromberg & Newman, PC)
We have written extensively about the decision of Attorney General Sessions to rescind the Obama-era Cole Memo, which had provided guidance to federal prosecutors about marijuana enforcement priorities, along with some of the reactions to that decision by members of Congress, U.S. Attorneys, and Governors. We have also examined the statements on the topic of marijuana enforcement made by Attorney General Sessions following his decision.
Most recently, Attorney General Sessions commented that, despite his rescission of the Cole Memo, federal prosecutors would not be focusing on small-time, routine marijuana cases. Following a speech in March, Attorney General Sessions stated that "I am not going to tell Colorado or California or someone else that possession of marijuana is legal under United States law[.]" However, he added that federal prosecutors have not "been working small marijuana cases before, they are not going to be working them now." Attorney General Sessions also noted that federal prosecutors will continue to focus on drug gangs and larger conspiracies and that the decisions about which cases to pursue will remain within the discretion of U.S. Attorneys.
While those comments may provide some small degree of comfort to those involved in cannabis businesses in the States where it is legal, significant concerns remain for those businesses. Thus, it was not surprising to see that on March 29, California State Treasurer John Chiang, and other members of a newly-established, multi-state consortium of States with some manner of legalized marijuana, wrote to Attorney General Sessions to request a meeting to try to resolve some of the inherent conflicts between State cannabis laws and federal law on this issue. The other government officials who signed the letter were the State Treasurers from Illinois, Oregon, and Pennsylvania.
In their letter, the authors stressed that the States where marijuana is legal in some fashion "represent a true cross-section of America. This is not just a blue state phenomenon but includes purple and red states in every corner of our country. A majority of Americans now live in states where they have decided to legalize cannabis." The authors asserted that the Attorney General's decision to rescind the Cole Memo created uncertainty, particularly for financial institutions providing banking services to cannabis businesses, "at a time when financial institutions and cannabis businesses need greater clarity on how federal law enforcement and regulatory agencies will respond to the growing legalization of cannabis at the state level. Whether cannabis should be legal is not relevant to the simple fact that it now is in more than half of the states."
The authors stressed that financial institutions and other entities that do business with the cannabis industry need reassurance that they will not be prosecuted so long as they operate in compliance with governing State law. In that regard, the authors claimed that "[t]he absence of the Cole Memos now leaves the industry and financial institutions in the dark." Accordingly, the authors requested a meeting with the Attorney General, as they declared that "[i]n this incredibly divisive time, the issues surrounding the legalization of cannabis provide a unique opportunity for policymakers, regulators, and law enforcement officials from all sides to meet and reach a consensus. We believe that we can work together and achieve a solution that recognizes more and more Americans are living in states where they have decided to legalize cannabis while balancing the important law enforcement issues the Cole Memos tried to account for."
Such a meeting seems unlikely, and the notion that such a meeting would lead to a consensus seems even more unlikely in view of the Attorney General's views on this issue, but we will nonetheless be watching to see if Attorney General Sessions agrees to meet with Treasurer Chiang and his colleagues.