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Will Legal Marijuana Businesses Be Prosecuted Under New DOJ Policy?

Jan 04 2018

Temporary THC Truce

As we've warned marijuana business owners before, state marijuana laws often conflict with federal marijuana laws. During the Obama presidency, the Justice Department refrained from prosecuting

federal drug offenses in states that had legalized medical or recreational marijuana. But that was due to law enforcement policy directives -- not a change in the law itself -- meaning that state city and efforts to legalize and decriminalize weed were always subject to federal law enforcement's acquiescence to the will of state voters and lawmakers. And those directives could be changed by a new administration.

And, judging by the DOJ's language, that change has certainly come:

This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.

Dope and Discretion

As Sessions said in a statement, "today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country." Ostensibly, the new guidance paves the way for federal officers and prosecutors to enforce federal bans on marijuana, even in states that have legalized it. But while the proverbial handcuffs might be off federal prosecutors who were previously restrained from filing marijuana charges, that doesn't necessarily mean they're required to lock up all cannabiz owners.

The new guidance references the discretion all prosecutors have when filing criminal charges: city, state, and U.S. attorneys are not bound to prosecute every possible charge. Instead, criminal prosecutors are tasked with seeking justice in each case. So prosecutors can decline to file criminal charges, and judging from Sessions' comments, federal prosecutors will retain that discretion in marijuana enforcement.

"In deciding which marijuana activities to prosecute under these laws with the department's finite resources," the memo advises, "prosecutors should ... weigh all relevant considerations of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community."

What it means for federal drug enforcement, however, can be a little more difficult to determine. Are medical marijuana dispensaries less likely to be the subject of a criminal investigation than recreational retailers? Will investors, banks, and credit unions be more reluctant to get involved in the cannabiz with the sword of federal prosecution hanging over their heads? The Justice Department recently pulled the plug on the prosecution of medical marijuana users in Washington -- would they do that again?

Sessions' new stance on pot may not necessarily mean more prosecutions, but it can certainly harsh the mellow of marijuana business owners. If you're unsure how the new guidance will affect your cannabiz, talk to a local attorney.

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