In rescinding the Cole Memo, and all other DOJ guidance on marijuana enforcement, Sessions issued a simple one-page memo that made no mention of the fact that such guidance, like it or not, constituted the foundation of a significant industry operating in over half the country. He provided no new guidance as to how U.S. Attorneys should approach marijuana enforcement going forward, other than to say that the U.S. Attorneys’ Manual gives federal prosecutors discretion to decide which cases to prosecute.
Prosecutorial discretion is a critical component of federal law enforcement, as it acknowledges that the enforcement priorities in Florida will likely differ from those in Alaska. But there is one thing that Florida and Alaska have in common: both states have legalized marijuana. With the Cole Memo now rescinded, what criteria should U.S. Attorneys in those states use to determine how to enforce federal marijuana laws? Should every business or individual involved in marijuana be prosecuted? None of them? The Sessions memo offers no guidance. That raises the likelihood that marijuana enforcement will descend into a random patchwork that varies from state to state, and even within states, depending on the disparate views of U.S. Attorneys. Say what you will about the Cole Memo, but it at least encompassed a single enforcement mechanism that applied uniformly across the country.
Another revealing aspect of the Sessions memo is its characterization of the Cole Memo and other rescinded marijuana guidance. According to Session, because U.S. Attorneys already enjoy prosecutorial discretion with respect to the enforcement of all federal laws, guidance specific to marijuana was “unnecessary.” Sessions thus effectively conceded that prior federal deference to state marijuana laws, and presumably going forward as well, is perfectly consistent with DOJ’s well-established practice of prosecutorial discretion. It is akin to the scene in The Wizard of Oz when the Witch of the North informs Dorothy that she possessed the ability to go home the entire time.
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Down the Memory Hole: