Citing Scant Resources, Justice Department will not Prosecute Minor Marijuana Offenses

April 3, 2018 by Dennis R. Baranowski, Esq.

The Trump administration has pretty much kept everyone in the dark about the federal government's enforcement priorities when it comes to cannabis. However, the Department of Justice (DOJ) finally shed some light on their plans in early March.

Last month Attorney General Jeff Sessions stated that federal prosecutors would not pursue minor cannabis offenses. This policy clarification comes just a couple months after Justice opted to rescind the “Cole Memo,” which discouraged prosecutors from targeting cannabis businesses in states that legalized its use and had in place robust regulations.  

Speaking at Georgetown University, Sessions stated that federal law enforcement has insufficient resources to handle minor cannabis cases and that it would instead focus its investigative and prosecutorial efforts on fighting drug cartels and organized illegal distribution networks.  

In early 2018, the Trump administration cast uncertainty on the emerging legal cannabis market by nullifying the hands-off approach taken by the Obama Justice Department towards legalized cannabis.  Alternatively, Trump argued that U.S. Attorneys should instead use their discretion when enforcing federal cannabis laws.  

This policy shift compounded confusion in states where cannabis had been legalized as to what activities were permissible when it came to the cultivation, distribution, and the recreational and medicinal use of cannabis. It also sparked concern within the cannabis industry that overzealous prosecutors would begin to fine retailers or jail minor offenders for cannabis possession.  

Sessions clarified by saying, “Federal prosecutors won’t take on small-time cannabis cases, despite the Justice Department’s decision to lift an Obama-era policy that discouraged U.S. authorities from cracking down on the pot trade in states where the drug is legal, Attorney General Jeff Sessions said Saturday. Federal law enforcement lacks the resources to take on ‘routine cases’ and will continue to focus on drug gangs and larger conspiracies.” 

Areas of particular concern for the justice department are illegal cannabis-harvesting enterprises in national parks and organized crime rings that distribute cannabis alongside more hardcore drugs, such as cocaine and heroin. Some experts within the law enforcement community claim that pot legalization has created unintentional adverse consequences, including an underground black-market of cannabis dealing by criminals who do not attempt to comply with the state-issued legal guidelines.  

It remains unclear as to whether federal prosecutors will make a concerted effort to crack down on state-sanctioned cannabis entities. Although some U.S. Attorneys have explicitly stated they will continue to follow the approach of non-intervention, Session’s recent statements may sway others to reverse course, or they are possibly intended to give federal prosecutors the authority needed to go after the bigger fish.