Attorney General Garland: Marijuana Enforcement Remains Low DOJ Enforcement Priority in States Where Activity Is Legal

Last week, Attorney General Merrick Garland reiterated the position expressed during his confirmation hearing that enforcement of marijuana cases in states where activities are legal is an inefficient use of Department of Justice (“DOJ”) resources.  Responding to Senator Brian Schatz (D-Hawaii) during a Senate Appropriations subcommittee hearing on whether Garland intended to reinstate guidance to U.S. Attorneys on not prosecuting marijuana cases in states that have legalized activities, the Attorney General replied that the position taken during his February 2021 confirmation hearing had not changed.  Merrick Garland, Testimony Before the Senate Subcommittee on Appropriations, Apr. 26, 2022, (01:06:35).  Garland had opined during his confirmation that “I do not think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana.  I do think we need to be sure, for example, that there are no end runs around the state laws by criminal enterprises, and that access is prohibited to minors.”  Merrick Garland, Responses to Questions for the Record to Judge Merrick Garland, Nominee to be United States Attorney General, 24.

Marijuana is legal for medical use in 37 states, and for recreational use by adults in 18 states, but the drug remains a federal schedule I substance.  21 U.S.C. § 812(c)(10).  Under the federal Controlled Substances Act, schedule I substances by definition have a high potential for abuse, lack currently accepted medical use in treatment in the United States and lack accepted safety for use under medical supervision.  21 U.S.C. § 812(b)(1).  They are the most stringently regulated substances of abuse and it is unlawful to manufacture and distribute them.

It is important to understand the lead up to Garland’s stance.  In response to states authorizing and legalizing marijuana while it remained a schedule I substance federally, Deputy Attorney General James Cole provided guidance in a memorandum to U.S. Attorneys in August 2013 that DOJ was unlikely to take enforcement action against marijuana-related businesses operating in compliance with state law unless the businesses implicated any one of eight enforcement priorities.  The “Cole Memo” guidance rested on DOJ’s expectation that states legalizing marijuana would implement strong and effective regulatory and enforcement systems to control cultivation, distribution, sale and possession of marijuana.  James M. Cole, Memorandum for All United States Attorneys, Aug. 29, 2013, 3.

Attorney General Jeff Sessions rescinded prior DOJ guidance on marijuana enforcement, including the Cole Memo, in January 2018.  Session directed federal prosecutors to weigh all relevant considerations, including enforcement priorities set by the Attorney General, seriousness of the crime, deterrent effect of criminal prosecution and cumulative impact of particular crimes on the community.  Jefferson B. Sessions, Memorandum for All United States Attorneys, Jan. 4, 2018.  A year later, William Barr, Sessions’ successor, stated during his nomination that while he disagreed with efforts by states to legalize marijuana, he would not as Attorney General, “go after” marijuana businesses relying on the Cole Memo in states where the activity is legal.  Confirmation Hearing on the Nomination of Hon. William Pelham Barr to Be Attorney General of the United States, S. Hearing 116-65, at 70 (Jan. 15 and 16, 2019).

Although Attorney General Garland did not indicate whether or not he would formally reissue the Cole Memo, it seems that without additional guidance businesses located in states where marijuana activity is legal cannot dismiss the now almost nine year-old Cole Memo.  Marijuana businesses should continue to be mindful of the Cole Memo’s enforcement priorities which seek to prevent:

• Distribution of marijuana to minors;
• Revenue from the sale of marijuana to criminal enterprises, gangs and cartels;
• Diversion of marijuana from states where it is legal under state law in some
  form to other states;
• State-authorized marijuana activity from being used as cover or pretext for trafficking illegal drugs or other illegal activity;
• Violence and use of firearms in marijuana cultivation;
• Drugged driving and exacerbation of other adverse health consequences associated with marijuana use;
• Growing of marijuana on public lands and attendant public safety and environmental dangers posed by marijuana production on public lands; and
• Marijuana possession or use on federal property. Cole, Memorandum for All United States Attorneys, 2013, at 1-2.

Garland could not have been clearer in identifying DOJ’s other priorities, opining last week that marijuana prosecutions are “not an efficient use of the resources given the opioid and methamphetamine epidemic.”  Garland, Testimony, Apr. 26, 2022, (1:07:26).