States Undeterred by Reversal of Obama's Lenient Pot Policy

Jeff Sessions' announcement attracted bipartisan criticism. But some legal experts are skeptical of its impact, and several states have vowed to continue their marijuana markets or plans for one.
by | January 4, 2018
U.S. Attorney General Jeff Sessions (AP/Carolyn Kaster)

Last updated at 8:34 a.m. ET on Friday

U.S. Attorney General Jeff Sessions rescinded federal guidance on Thursday that reassured states they wouldn't be punished for legalizing marijuana, according to The Associated Press.

The move by Sessions, a long-time critic of legal marijuana, frees up federal prosecutors to crack down on marijuana-related offenses in their districts as they see fit. In states where voters have legalized marijuana, the announcement is likely to create confusion about the legality of growing, buying and using marijuana, and could threaten an increasingly significant revenue source for state and local governments.

An estimated 65 million Americans, about one-fifth of the country’s population, now live in states with some form of legalization. States use revenue from marijuana sales to fund schools, affordable housing, law enforcement and public education campaigns. In Colorado and Washington state, two of the earliest states to legalize recreational marijuana, the market has generated $617 million and $831 million, respectively, in revenue for states.

In 2013, the Obama administration issued the Cole memo, named after then-Deputy Attorney General Jim Cole, urging federal prosecutors not to use their limited resources to prosecute people and businesses that complied with state marijuana laws, so long as they met certain federal criteria, such as keeping the drug out of the hands of criminal gangs and minors.

Sessions rescinded that memo on Thursday, days after recreational marijuana became legal in California, which has been leading state efforts to resist Trump administration policies.

“I think it's intended to create chaos,” says Andrew Freedman, former director of marijuana coordination for Colorado Gov. John Hickenlooper who now runs a private consulting firm that helps states implement marijuana regulations.

The change, however, doesn't appear to be stopping states' marijuana markets or plans for one.

Even after hearing the news on Thursday, Vermont lawmakers opted to move forward with legislation that would legalize recreational marijuana in the state.

"This is an industry that Oregonians have chosen -- and one I will do everything within my legal authority to protect," Oregon Attorney General Ellen Rosenblum said in a statement on the same day.

Washington Gov. Jay Inslee echoed a similar sentiment: “We will use every single power at our disposal to preserve and protect the mission statement Washington State voters gave us."

In recent years, voters in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington state have approved the legalization of marijuana for recreational purposes. Twenty-seven states and the District of Columbia also allow for state-regulated dispensaries of medical marijuana.

While Freedman says consumers, businesses and financial institutions may be more reluctant to engage in the marijuana industry, “what doesn't change is the states’ legal obligation to carry through with legalized marijuana programs."

Also, although the move by Sessions gives local U.S. attorneys the discretion to prosecute marijuana businesses and consumers, it's unclear how many will do so.

"I think it's unlikely," says Brian Vicente, an attorney whose law firm works with marijuana businesses across the country. Noting that recent polling shows a majority of Americans believe the use of marijuana should be legal, "I think it would be unpopular for U.S. prosecutors to come after state-legal businesses," he says.

Nevertheless, the news attracted criticism from both sides of the aisle.

U.S. Sen. Cory Gardner of Colorado, a Republican, wrote on Twitter that the Justice Department "has trampled on the will of the voters in CO and other states." In retaliation, Gardner threatened to hold up Justice Department nominees.

Another Republican, U.S. Sen. Lisa Murkowski of Alaska, released a statement calling the announcement "disruptive to state regulatory regimes and regrettable."

Oregon Democratic Gov. Kate Brown says the policy reversal could harm her state's economy, where estimates show the marijuana market has created more than 19,000 jobs. 

U.S. Sen. Cory Booker, who introduced legislation last year to remove marijuana from the list of banned substances under federal law, called the decision "fiscally wasteful, morally bankrupt, unjust."

And U.S. Sen. Bernie Sanders of Vermont said, "We should allow states the right to move toward the decriminalization of marijuana, not reverse the progress that has been made."