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AG Sessions and the Emerging Cannabis Industry

With today’s bombshell announcement from Attorney General Sessions, what is the future for the medicinal and recreational cannabis industry?

To be candid, we just don’t know.

On January 4, 2018, AG Sessions announced he was rescinding the Cole Memorandum drafted by former Deputy Attorney General James Cole in 2013.  The Cole Memo directed United States Attorneys to weigh a number of factors before exercising federal jurisdiction in states with medicinal or recreational cannabis programs.  The Cole Memo directed federal prosecutors to consider whether there is an increase in overall criminality, cannabis related DUI, increased use by minors and other factors.  In a recent federal prosecution the Court held that the United States must make a prima facie showing that the factors in the Cole Memo justified prosecution.

With the rescission of the Cole Memo, individual United States Attorneys are free to utilize their resources however they see fit without considering whether a state cannabis program was actually harmful.  The Department of Justice does not have unlimited funding, and issues such as the opioid crisis and wire fraud command significant federal law enforcement resources.

In addition to the Cole Memo, Congress attached the Rohrabacher-Farr amendment to the federal budget restricting the Department of Justice from utilizing Congressionally authorized funding to prosecute state cannabis programs.  AG Sessions sought relief from these restrictions in May, 2017, but was rebuffed.  Rohrabacher-Farr’s future is tenuous at best.  If it is not included in the final federal budget then there will be nothing stopping the Department of Justice from using its full weight against the emerging cannabis industry.

With over 60% of Americans polled supporting full legalization, it is difficult to understand why the Administration is on the apparent verge of a crackdown.  The cannabis industry is projected to be a 20 billion dollar industry employing tens of thousands.  Critically needed tax revenue is repairing Colorado’s schools and Washington’s infrastructure.  Countless Americans are no longer faced with arrest and prosecution for possession of a simple non-toxic plant.

What is the path forward?

Federal legalization is the only answer that will solve the push-pull between conflicting state and federal jurisdiction.  Rescheduling cannabis from Schedule I to Schedule II may go far in protecting personal medicinal use, but cultivation facilities and dispensaries could still easily be targeted.  The “hands off” approach of the Obama Administration may not have been perfect, but it allowed the emerging industry to demonstrate it was a net benefit for the communities and state in which it operated.

Here in Pennsylvania we do not believe that the United States Attorney for any of our three federal districts will shift resources from investigating large scale heroin trafficking organizations to focus on our highly regulated medicinal cannabis program.  We expect our United States Representatives and Senators here in Pennsylvania to respect the will of 88% of Pennsylvanians who support medicinal cannabis.

Once, not too long ago, we were assured that the President is “a businessman.”  He had no intention of killing the goose that laid the green egg.  The President respected state’s rights and supported limited government.  Well, with the announcement by AG Sessions, that has apparently been proven false.

Patrick K. Nightingale, Esquire

Partner, Cannabis Legal Solutions

Executive Director, Pennsylvania Medical Cannabis Society.

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Vinni BelfioreAG Sessions and the Emerging Cannabis Industry