State Marijuana Laws at Odds with Federal Enforcement

This month, the doors to recreational pot dispensaries opened in California—bringing the number of states that have legalized recreational use of the drug to eight (more than 30 states allow for medical marijuana use). But last week, Attorney General Jeff Sessions rescinded an Obama-era policy that, in effect, allowed state laws regarding marijuana use, for medical and commercial, to trump federal law. Will this new move by AG Sessions dampen the burgeoning commercial marijuana industry in states? Federal law designates marijuana in the same class as heroin and LSD. Will residents in states that allow for recreational marijuana use be at risk for criminal prosecution? In the discussion that follows, Professor Robert MacCoun answers some of these questions.

Is this the beginning of the end for marijuana legalization?

I doubt it, but it does illustrate that efforts to legalize by individual states are inherently unstable. The Attorney General rescinded a 2013 DOJ memorandum (“the Cole memo”) that had no binding force. That memo clearly stated that legalized marijuana sales remained illegal under federal law, but it advised federal prosecutors to make marijuana enforcement a low priority unless states failed to provide “robust” regulation by failing to prevent sales to minors and diversion to other states.

Is this going to lead to a lot of new federal prosecutions?

Not necessarily. Federal prosecutors have plenty of discretion, and just as the Cole memo didn’t prevent them from targeting the industry, this new DOJ position doesn’t obligate them to do so. Such prosecutions would require a lot of resources, with very little assurance of success.

So, the industry can relax?

Well, this sends a signal to big-money investors that this is a risky business, and it may discourage state lawmakers in the 42 states that haven’t yet legalized. And of course, the administration is appointing new prosecutors more congenial to Sessions’ point of view.

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Can Congress push back against the administration?  Will they?

Some House and Senate members already have started to do so, and public opinion mostly backs them up, especially in legalization states and among younger voters. And by younger voters, I don’t just mean twenty-somethings—it is probably more accurate to say that opposition comes from the oldest cohorts of voters, those who came of age before the 1970s. So, it is not inconceivable that Sessions’ efforts could backfire and accelerate the push toward federal legalization.

In the meantime, what can the legalizing states do to protect themselves from federal interference?

No one should have the illusion that legalization is inevitable and permanent. There are many scenarios in which a backlash could occur. To prevent that from happening, the industry needs to more tightly regulate its own conduct and rein in its more aggressive entrepreneurial instincts. Keep young children from eating marijuana candies. Go easy on the billboards and other advertisements. And more than anything else, stay under the radar. Anytime “legal” marijuana products cross state lines, there’s a potential political and legal crisis waiting to happen.

Robert MacCoun is the James and Patricia Kowal Professor of Law at Stanford Law School and a senior fellow at the Freeman Spogli Institute at Stanford.