How U.S. Attorneys Have Responded to the Rescission of Marijuana Enforcement Guidance
[Revised 1/14 for clarity and updates.]
Now that the Attorney General has rescinded Obama-era marijuana enforcement guidance, local federal prosecutors (U.S. Attorneys) arguably have more leeway to pursue legal action against the state-licensed recreational marijuana industry. (The state-licensed medical marijuana industry is still protected by spending restrictions Congress has imposed on the DOJ, at least under the current federal budget .)
For reasons I gave in my earlier post on rescission (here) and in an essay written 100 days into the Trump Administration (here), I doubt the federal government will initiate a crack down on the marijuana industry. And nothing that U.S. Attorneys have said in the more than 10 days since the rescission announcement changes that assessment. Indeed, as noted in my earlier post, the U.S. Attorney for Colorado strongly hinted that he would stay the course and continue to apply the same enforcement strategy post-rescission that his office followed under the Obama guidance.
It is worth noting, however, that the U.S. Attorney for the District of Oregon has recently expressed grave concerns about the Oregon marijuana industry that at least hint at the possibility of a future federal crackdown. In an op-ed, he wrote in part that,
Oregon has a massive marijuana overproduction problem. . . .
Overproduction creates a powerful profit incentive, driving product from both state-licensed and unlicensed marijuana producers into black and gray markets across the country. This lucrative supply attracts cartels and other criminal networks into Oregon and in turn brings money laundering, violence, and environmental degradation.
Importantly, the U.S. Attorney noted that he would seek more information from state regulators and hold a summit with them before deciding on any course of action — i.e., even in Oregon, the U.S. Attorney hasn’t yet committed to a crack down.
Nonetheless, even if the U.S. Attorney in Oregon (or elsewhere) were to pursue some legal action against the marijuana industry, it wouldn’t necessarily mean that rescission of the enforcement guidance had changed enforcement practices. After all, the rescinded guidance itself had left the door open for U.S. Attorneys to enforce federal law when state-licensed marijuana suppliers implicated certain federal enforcement priorities, like preventing the inter-state diversion of marijuana — which is (notably) one of the very concerns raised by the U.S. Attorney in Oregon.
The rescinded guidance is discussed further in my book on pages 343-353. Leafly.com has been compiling the statements made by individual U.S. Attorneys here. Unfortunately, however, nearly all of these statements are too vague to enable making confident predictions about whether and how individual U.S. Attorneys will change enforcement practices in the future. To help make such predictions, the Washington Post has also compiled some background on these U.S. Attorneys and their views of marijuana (see here) – but again, it’s not much.