Rollback of Cole Memo Underpins Inconsistency Surrounding Marijuana Law Enforcement

To proponents of marijuana legalization, the ongoing political battle is a game of milestones. California’s Proposition 215 (otherwise known as the Compassionate Use Act of 1996) provided a barometer for states considering their own medical-use programs, while more recent events in Colorado and Washington opened the gates for recreational-use programs across the country. To date, 29 states and Washington, DC have legalized medical use and nine (including some overlap with medical states) have authorized some form of recreational usage. At minimum, this underscores a limited degree of willingness to legalize the narcotic at the state level, with states like Colorado and California playing the role of springboard for those that follow.

For those same proponents, former Attorney General (AG) Jeff Sessions’s January announcement that he would reverse the Cole Memo had potential to serve as a different kind of milestone. The Obama-era memo, set forth by then-Deputy Attorney General Jim Cole, represented “a policy of non-interference with marijuana-friendly state laws” for federal prosecutors, according to CNN.  This provided the safe haven that legal marijuana businesses needed to operate without fear of federal reprisal. However, under Sessions’s changes, U.S. attorneys now have greater discretion to pursue marijuana-related infractions in medical and recreational states.

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Sessions’s move carries several interesting political, social, and criminal justice implications, despite existing law and action from the Trump administration rendering the move largely unenforceable. Many such implications fall squarely on the shoulders of federal law enforcement. While sub-federal officers may not see significant change in their roles, the move is also reflective of a highly challenging marijuana landscape in which law enforcement organizations across the country have received inconsistent, often contradictory, direction. To date, 29 states and Washington, DC have legalized marijuana medical use and nine (including some overlap with medical states) have authorized some form of recreational usage. Click To Tweet

Marijuana Legalization: The federal view

The federal government’s stance on legalization has been slow to adapt in many regards. This has created an environment where very few things are certain. Marijuana businesses and their customers operate in a legal gray area, while actors within the criminal justice system are left wondering how to address marijuana-related situations.

The handing down and subsequent dismissal of the Cole Memo is only one artifact of this inconsistency. Marijuana is a Schedule 1 drug on the federal books, thus relegating it to the list of drugs with “no currently accepted medical use and a high potential for abuse.” This classification has drawn ample bipartisan ire and even mockery in the past, but it also plays a critical role in the government’s handling of marijuana issues. From a legal perspective, the drug is considered to have all risk and no real value.U.S. attorneys now have greater discretion yielding a highly challenging marijuana landscape in which law enforcement organizations across the country have received inconsistent direction. Click To Tweet

In particular, marijuana’s scheduling made it a point of contention in the early days of state-level legalization, when state-authorized medical dispensaries were subject to federal raids and asset seizures. Such raids became less frequent with the passage and subsequent renewals of the Rohrabacher-Farr Amendment (now called the Rohrabacher-Blumenauer Amendment), which prohibits the Justice Department from using “federal dollars to interfere with state medical marijuana laws and practices,” per CNN. Even that piece of legislation is not immune from the inconsistent federal approach to marijuana, with both narrow interpretations from the DEA and frequent last-minute extensions repeatedly putting its status in question.

In this sense, the federal government’s current role in the marijuana debate is less about the narcotic itself and more about the right of individual states to decide whether to legalize it. Following that logic, it would be hard for legalization proponents to call the continued bipartisan support for Rohrabacher-Blumenauer anything but a victory, both symbolic and practical. With marijuana proponents quick to paint Sessions as the single largest roadblock to legalization, and the amendment as the only thing keeping him from rolling back the movement they have affected, its most recent extension to September 2018 was viewed by proponents as a particularly important win.

Such portrayal may not be fair or even entirely accurate. While Sessions was a noted anti-marijuana presence in federal government, his rollback of the Cole memo did not go as far as it could have. Instead of directly demanding that federal law enforcement pursue what leads it could, it left discretion up to U.S. attorneys. Moreover, current laws may put the marijuana industry on uncertain ground — such as federal laws that consider any banks that accept money from marijuana businesses as money launderers — the administration has demonstrated a preference to let states decide their own course, with general bipartisan support for the same cause. Indeed, recent political wrangling led President Trump to assure Democratic Colorado Senator Cory Gardner and presumably similar industries in other states that, “the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry.”Current laws may put the marijuana industry on uncertain ground — such as federal laws that consider any banks that accept money from marijuana businesses as money launderers. Click To Tweet

How does law enforcement view, approach marijuana?

Considering the above, the federal government’s stance is neutral while leaning toward yes, with laws that chill the continued legalization of the narcotic and a large political base that wishes to soften them. Besides President Trump, prominent voices within the highest level of government have spoken in favor of legalization or greater rights for states to implement it, including Kentucky’s Rand Paul. This is consistent with recent polls suggesting over half of Republican voters favor legalization.

However, the law is still the law, which has potential to put law enforcement at all levels in a delicate situation. A growing number of police officers support softened marijuana laws, but personal opinions have little to do with professional behavior in law enforcement.

At the sub-federal level, the Sessions mandate will likely have little effect on the way officers carry out their roles, at least with Rohrabacher-Blumenauer in place. If anything, the very laws Sessions set out to invalidate with increased federal activity have created more confusion, less consistency, and more work for law enforcement. Officers bordering medical- or recreation-legal states, for instance, must be extra vigilant for cars transporting contraband, and marijuana impairment may be more difficult to spot than drunk driving in DUI situations.Officers bordering medical- or recreation-legal states must be extra vigilant for cars transporting contraband, and marijuana impairment may be more difficult to spot than drunk driving in DUI situations. Click To Tweet

President Trump’s assurances to Senator Gardner may leave federal law enforcement in a similar position. Media outlets have claimed the promise is tantamount to “abandonment” of Sessions’s plan, and there is no evidence to indicate increased federal activity against lawful marijuana businesses. The DEA and their counterparts have been as vigilant as ever in arresting those who flaunt (or hide behind) state marijuana laws, where applicable, but Sessions’ repeal may struggle to gain teeth until Rohrabacher-Blumenauer comes off the books — presuming that ever happens.

More of the same?

It may appear that the people have spoken and that marijuana legalization throughout the country — despite a prominent detractor in the Trump administration — is continuing its road to progress. Proponents are quick to say that historic public support of legalization (61 percent as of this writing) is a sure sign of that.

Moreover, while the legalization battle may have gained steam in medical and recreational states, several states still have no legalization laws on the books. In these areas, marijuana-related arrests are actually on the uptick since 2014. More legalization means a changing job for law enforcement, who will need increased training on matters such as marijuana DUI arrests and post-decriminalization protocol. Click To Tweet

Taken in total, it appears the political and criminal justice battle over marijuana is in flux, at best — and completely inconsistent, at worst. Things will likely remain that way for some time, even if the Trump administration’s promises of greater state discretion materialize. More legalization means a changing job for law enforcement, who will need increased training on matters such as marijuana DUI arrests and post-decriminalization protocol.  A federal crackdown, while unlikely, would result in state vs. federal standoffs that spill into the courts. If AG Sessions’s rollback of the Cole Memo did not do much to change the state of marijuana law enforcement, it did at least bring the uncertainty and inconsistency of enforcement efforts to the attention of the country, regardless of how the legalization question is ultimately answered.

 

 

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2018-12-12T13:22:57+00:00 December 12th, 2018|General, Legal, State, Training & Equipment|