Cannabis law can be complicated because what is legal in a state is not necessarily legal at a federal level. This contention can represent a source of confusion for those who wish to participate in a state's legal cannabis industry but are concerned about federal consequences.
The Cole Memorandum was the first critical step taken towards addressing this fundamental disconnect. The memo offered guidance for federal prosecutors considering marijuana investigations or charges in states where marijuana had been legalized.
A brief history of the Cole Memorandum
The Cole Memorandum, or Cole Memo as it's sometimes referred to, was authored by the Justice Department's Deputy Attorney General James Cole in 2013. Drafted under the Obama administration, the memo was issued as the cannabis landscape in the US began to change.
Colorado and Washington had just legalized recreational cannabis and were in the process of developing rules and regulations. It became clear that federal guidance was needed to address the conflict between state and federal law. Cole issued the memo for US district attorneys who were negotiating the tightrope between honoring new state cannabis laws and upholding the national Controlled Substances Act.
Fundamentally, the memo lays out expectations for federal prosecutors and law enforcement to follow in states with legal cannabis programs. It encourages them to use federal government resources to address threats “in the most effective, consistent, and rational way.”
The Cole Memorandum specifically instructed federal representatives to focus on the following eight priorities to avoid interfering with state laws:
- Avoiding distribution of marijuana to minors
- Preventing criminals from profiting off marijuana
- Stopping marijuana from crossing state lines
- Eliminating illegal activity and drug sales under the cover of state-sanctioned marijuana sales
- Removing guns and violence from the system of marijuana cultivation and distribution
- Eliminating driving under the influence and other marijuana-related negative public health outcomes
- Keeping marijuana cultivation, possession, and use off public property
The memo, officially titled Guidance Regarding Marijuana Enforcement, was sent to all US attorneys. It wasn't the first document of its kind. In fact, it actually expanded on a 2009 memorandum issued by Deputy Attorney General David. W. Ogden.
Ogden had urged department attorneys to avoid focusing federal resources on individuals who were acting in compliance with existing state laws that allowed for medical marijuana.
What did the Cole Memo accomplish?
The memorandum clarified how legal cannabis industries and federal enforcement agencies could peaceably co-exist. It also filled a critical legal void at a point in time when the nascent cannabis industry was blossoming in the face of unwavering government opposition.
Cole's words offered clear directives on the aspects of cannabis policing that should be prioritized by federal representatives. Doing so gave individuals and businesses in legal states the peace of mind they needed to participate in the industry without the fear of risking prosecution.
Why did Jeff Sessions rescind it?
On January 4, 2018, Attorney General Jeff Sessions rescinded the Cole Memorandum, replacing it with his own memo addressed to all federal prosecutors. Sessions' memo immediately revoked the guidance issued by James Cole in 2013. For some commentators, Sessions' statement was viewed as a declaration of a new war on drugs.
Sessions' memo referenced the historical national stance towards prohibition and the severe penalties awarded for marijuana-related crimes. He also emphasized Congress's view that marijuana is a dangerous drug, and that activity related to marijuana constitutes a serious crime. He recommended that prosecutors follow the established principles and protocol that govern all federal prosecutions.
Sessions commented, “Today's memo on federal marijuana enforcement simply directs all US 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."
Interestingly, cannabis law expert David Feldman has noted that although the Sessions Memo signaled a change in policy, there was very little change in practice with very few federal prosecutions taking place.
What is the status of state and federal cannabis law today?
There has been no updated memorandum about marijuana.
At the federal level, however, profound change is afoot. On December 4, 2020, the House of Representatives overwhelmingly voted in favor of the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act. The MORE Act, which would effectively remove cannabis from the Controlled Substances Act and end criminal penalties under federal law, is one of the most robust cannabis reform bills ever introduced in the US. While it is highly unlikely to pass the Senate, the fact that it was voted on at all may signal coming change and a possible reconciliation of US federal and state law regarding marijuana.