US Attorney: No change to enforcement priorities after Sessions’ decision
Alaska’s U.S. Attorney and state marijuana regulators vowed to continue business as usual after Attorney General Jeff Sessions changed the previous administration’s enforcement position on Jan. 4.
Sessions rescinded the “Cole Memo” written in 2013 that established a federal policy of non-interference in marijuana operations legalized at the state level as long as federal priorities were followed such as keeping drugs out of the hands of minors and protecting against involvement by criminal elements.
The Sessions memo notes marijuana is still illegal as a Schedule I drug under the Controlled Substances Act, and instructs U.S. attorneys to follow existing “well-established” principles that govern all federal prosecutions.
Those principles include “federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”
Given those principles, Sessions concludes, “previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.”
Alaska’s U.S. Attorney Bryan Schroder said current enforcement priorities will not change.
“The U.S. Attorney’s Office for the District of Alaska will continue to use the long-established principles of federal prosecution to determine what cases to charge,” Shroder wrote in a statement. “One of the key principals is to follow federal law enforcement priorities, both at the national and local levels. The highest priorities of the U.S. Attorney’s Office in Alaska are consistent with those of the Justice Department nationally: combating violent crime, including as it stems from the scourge of drug trafficking. Consistent with those priorities, the U.S. Attorney’s Office released an Anti-Violent Crime Strategy in October of the past year. We will continue to focus on cases that meet those priorities.”
A similar statement was issued by Colorado U.S. Attorney Bob Troyer, who said he will continue focusing on the national priorities by Session that are topped by prosecuting violent crimes.
The Anchorage Daily News reported Thursday afternoon on the resignation of board chairman Peter Mlynarik, who is also the Soldotna Chief of Police and campaigned for a ban on commercial cannabis businesses on the Kenai Penisula this past fall.
Another member of the board was unfazed by the memo.
“We have our direction,” said board member Loren Jones of Juneau, who holds the designated public health seat. “We’re moving ahead until we see some action. As I look at the news he (Jeff Sessions) is saying, ‘I will tell our U.S. Attorneys in various regions to enforce as they will.’ We’ll use our state regulations and our state laws until such time as that changes.”
Named for Assistant Attorney General James Cole who authored it, the 2013 memo rescinded by Sessions followed legalization of recreational use of marijuana in Washington and Colorado in 2012.
Several states, including Alaska in 2014, subsequently had successful voter initiatives to legalize recreational use. Others have voted to legalize medicinal use of marijuana, which has been legal in Alaska since 1998.
The right to possess and grow small amounts of marijuana for personal use was established in a 1975 Supreme Court decision based on the Alaska constitution’s privacy clause.
Overall, 29 states have legalized medicinal marijuana; eight states plus the District of Columbia have legalized recreational use; and 18 states allow for the use of cannabinoid oil, also known as CBD, which is non-psychoactive.
Federal prosecutions for state-authorized medicinal marijuana use are already prohibited under the current fiscal year budget.
Alaska has collected $5.5 million in revenue since it first began collecting marijuana taxes in October 2016. There may be a period of uncertainty for the 149 legal cannabis operators at work in Alaska, but there’s also support from the state’s top officials.
State Attorney General Jahna Lindemuth said she is looking at specific actions to clarify what this means for the state businesses.
“This creates uncertainty for those states with legalized marijuana. We are still evaluating exactly what this means for Alaska. But we have a duty to uphold and implement state law, and that is what we will continue to do,” Lindemuth said in an official statement.
Gov. Bill Walker said the State of Alaska relied on federal assurances in crafting the regulatory framework on legal cannabis that now exists.
“Alaskans voted in 2014 to legalize the commercial sale of marijuana. I remain committed to upholding the will of Alaskans on this issue and maintaining our State’s sovereign rights to manage our own affairs while protecting federal interests,” Walker said in a statement. “Today’s announcement withdrawing the Cole Memorandum is disappointing. I will continue to work with the U.S. Department of Justice and our Congressional Delegation to prevent federal overreach into Alaska.”
Sen. Lisa Murkowski sent out a message on Facebook expressing disappointment with Sessions’ decision.
“My office can confirm that we received notification from the Justice Department this morning that they intended to withdraw the ‘Cole Memorandum,’” she wrote. “Over the past year I repeatedly discouraged Attorney General Sessions from taking this action and asked that he work with the states and Congress if he feels changes are necessary. Today’s announcement is disruptive to state regulatory regimes and regrettable.”
Because Congress makes the laws, the question now becomes whether the Republican-controlled branch of government will take action regarding marijuana enforcement to replace the Cole memo guidance.
Rep. Don Young, a founding member of the Cannabis Caucus, has filed bills that require the federal government to respect state laws legalizing marijuana, to remove it from the Schedule I status, to allow financial institutions to do business with the marijuana industry, allow Veterans’ Affairs doctors to prescribe marijuana in states where it is legal, and to allow marijuana businesses to use the same tax deductions as other small businesses.
Sen. Dan Sullivan, along with four other Republicans, was in a meeting with President Donald Trump Thursday morning.
“President Trump himself had said on a number of occasions that this is a states’ rights issue,” noted Sullivan spokesperson Matt Shuckerow.
The former aide to Young, who has long classified the issue as one of states’ rights and did so again in his official statement on Thursday, added that the Alaska delegation is “united in the cause to protect the rights of Alaskans to operate in their own borders and boundaries.”
But support of declassifying marijuana as a Schedule I drug isn’t seen as the main route for aligning state and federal laws on marijuana, Shuckerow said.
“There are numerous legislative efforts out there to bring in line or align state and federal law on marijuana in some shape or form,” Shuckerow said. “Rescheduling marijuana is one avenue that in many cases is seen to some as extreme — some don’t believe in legalizing it entirely on a federal level.”
Sessions’ move may be the impetus that pushes legislation and debate to the forefront, which Sullivan acknowledged in his official statement.
“Today’s action by the Department of Justice — which contradicts previous statements by the president that this is an issue best left to the states, and adds new confusion and uncertainty for numerous states and communities — could be the impetus necessary for Congress to find a permanent legislative solution for states that have chosen to regulate the production, sale and use of marijuana,” Sullivan said.
“As we move forward, I will be examining new and existing legislative proposals and working to ensure the rights of Alaskans and the State of Alaska are protected.”
During Sessions’ confirmation hearings, he told members of the Senate who pressed him on marijuana enforcement that, “If that’s something that’s not desired any longer, Congress should pass a law to change the rule. It’s not so much the attorney general’s job to decide what laws to enforce. We should do our job and enforce laws effectively as we’re able.”
In a letter Walker wrote to Sessions last summer, he addressed “marijuana regulations and criminal prosecutions in Alaska,” in answer to questions raised by Sessions.
In that letter from Aug. 14, 2017, he assured Sessions that the state’s regulatory framework governing state-licensed marijuana businesses addresses federal interests. But he also noted that Alaska’s resources are going toward addressing the severity of an opioid epidemic gripping the state.
“State law addresses risks of diversion by requiring all marijuana to be tracked from seed to sale, requiring all marijuana waste to be rendered unusable, and ensuring marijuana businesses do not have associations with criminal organizations,” Walker wrote.
Alaska’s Marijuana Control Board addresses “public health and safety concerns by controlling advertising practices, encouraging responsible consumption, and working to ensure the public is aware of the risk of marijuana,” he said.
Other hallmarks of Alaska’s legal operations restricts access to retail establishments, prohibits retail stores from locating and advertising in proximity to child-centered facilities, and bans advertisements targeting youth.
But the state also continues to refine laws and remains open to accommodating federal concerns, Walker assured Sessions.