Marijuana Policy Sessions Rescinded Was Meant To Hurt Cartels: Former DOJ Official

The Justice Department marijuana enforcement policy that U.S. Attorney General Jeff Sessions rescinded last week was crafted to try and keep cartels and gangs out of the marijuana trade, the policy’s author told International Business Times.

Former U.S. Deputy Attorney General James Cole authored what has come to be known as the “Cole memo” in August of 2013. That memo advised federal prosecutors to not enforce federal marijuana laws in states where the drug was legal unless the marijuana businesses were causing a threat to public safety, or states failed to properly regulate the nascent legal cannabis industry. The policy was a reaction to Colorado and Washington voters legalizing recreational marijuana by ballot initiative in 2012, starting a trend that has now led eight states and the District of Columbia to follow suit. By removing the specter of federal prosecution in states where the drug is legal, Cole’s policy helped give birth to an $8 billion legal marijuana industry. But, according to Cole, that was never his goal.

“My motivation was not to create a marijuana industry. My motivation was to get the cartels out of it, and have some regulation that would be responsible to control it," said Cole, who is now a partner at law firm Sidley Austin LLP.

Despite the state-level trend toward legalization, the federal government currently classifies marijuana as a schedule 1 controlled substance — the most dangerous classification, and the same one that governs heroin.

Sessions issued a memo on Thursday rescinding Cole’s guidance, effectively giving federal prosecutors the green light to prosecute marijuana businesses that operate legally at the state level.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," Sessions wrote.

Cole’s memo wasn’t legally binding, and didn’t change federal law, but it served as the official Justice Department policy in the face of state-level legalization. It told federal they should not prosecute legal marijuana businesses, unless the legalized pot was accessible by children, crossing borders to states where the drug is illegal, or used to fund criminal enterprises.

“I think it was working, I think it's a process that needs to mature over some period of time,” Cole said. “We thought that if there was some decent regulation going on it might take care of a lot of problems.”

One of those problems was Mexican cartels' involvement in the domestic illegal marijuana market.

“I think it was maybe a year after I issued the policy, I'm riding home from work one night listening to NPR and I'm hearing a report on how the Sinaloa cartel's income is starting to go way down because they aren't bringing marijuana into the United States like they used to," Cole said. "And I thought ‘Well, this seems to be working.’"

It’s unclear just what effect state legalization and Cole’s federal enforcement policy have had on cartel and gang involvement in the marijuana trade, and Cole himself said that there just isn’t enough data yet to draw any broad conclusions about the effectiveness of his policy. But the amount of marijuana confiscated at the southwest border, which some see as an indicator of Mexican cartels’ involvement in the U.S. marijuana market, has fallen precipitously in recent years.

In 2010, the U.S. customs and border patrol seized more than 3.7 million pounds of marijuana along the Southwest border. That number fell to just 857,000 pounds in fiscal year 2017. Of course, that long decline in marijuana seizures began in 2010, before states started legalizing recreational marijuana, so while some experts have argued rising domestic production has hurt cartel marijuana business, it’s unclear just what effect federal enforcement priorities have contributed to that domestic production.

“Seems reasonable to me that exports from Mexico would decrease as production of higher-potency cannabis has increased in the US, but I’d be careful about attributing that to adult-use legalization in Colorado, Oregon, and Washington," Dr. Beau Filmer, co-director of the RAND Drug Policy Research Center, told IBT in an email. "Those looking for answers need to go back and examine the loosely-regulated medical production in U.S. states as well as jurisdictions that allowed large home grows for medical patients.”

What is clear, unfortunately, is that to offset their losses cartels have shifted their business from marijuana to more dangerous drugs like heroin and meth.

Although Sessions could issue new guidance for how federal prosecutors should manage their limited resources in states with legalized marijuana, as it stands now, with the elimination of the Cole policy without a new policy to replace it, the DOJ is simply returning to pre-Cole memo enforcement.

But in many states, marijuana laws have drastically changed since the days before Cole wrote his eponymous memo. In 2014, Alaska, Washington and D.C. legalized recreational use, and in 2016 voters in California, Maine, Massachusetts and Nevada choose to legalize recreational use. Earlier this week, California began allowing the sale of recreational marijuana, becoming by far the largest state to allow its residents to consume marijuana legally. Pro-legalization activists were quick to argue that the rescinding of Cole’s policy would create legal uncertainty for a rapidly growing industry.

“This is going to create chaos in the dozens of states whose voters have chosen to regulate medical and adult use marijuana rather than leaving it in the hands of criminals,” Neill Franklin, executive director of the pro-legalization Law Enforcement Action Partnership, said in a statement. “If enforcement of laws are subject to the whims of individual prosecutors, no one will have any idea what is legal or what isn’t — because it could change from day to day.”

Lawmakers from states with legal recreational marijuana led an immediate, bipartisan backlash against Sessions’ decision, which is not unsurprising given that a recent poll showed 64 percent of Americans support legalization, as well as a majority of Republicans. The same morning Sessions’s action was reported, Colorado Republican Sen. Cory Gardner tweeted that he would delay the confirmation of Justice Department nominees to force Sessions to respect the rights of of states that have chosen to allow recreational weed sales.

“I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation,” tweeted Gardner, whose state generated $223 million in tax revenue from the sale of marijuana between January and November 2017.

Democrat Ron Wyden of Oregon, another state that has legalized recreational marijuana, said in a statement the Trump administration “is doubling down on states’ rights only when they believe the state is right.”

"Trump promised to let states set their own marijuana policies. Now he's breaking that promise so Jeff Sessions can pursue his extremist anti-marijuana crusade,” Wyden said.

All this noise from lawmakers underscores what Cole sees as the larger problem: contradictory state and federal law, a legal divergence Congress has failed to address.

“You rarely — and I can't think of another situation — where you have something that is explicitly legal under state law and explicitly illegal under federal law and then you have an industry growing up in that environment. I don't know of another industry like that,” Cole said.

“This is screaming for Congress to step in and make some sense of it,” he added. “Just clear it up.”