Published on: Thursday, January 4, 2018

Currently, six states have legalized recreational marijuana and medical marijuana use, permitting the sale of recreational marijuana; two more states and the District of Columbia legalized both uses but do not allow sales; and twenty-one additional states allow medical use only.  Under the Obama administration, the Justice Department issued a series of policy memos—see memos from Oct. 19, 2009 (DAG Ogden); June 29, 2011 (DAG Cole); Aug. 29, 2013 (DAG Cole); Feb. 14, 2014 (DAG Cole);  Oct. 28, 2014 (Dir. EOUSA Wilson)—initially directing federal prosecutors to de-prioritize prosecutions in states that allowed for the medical use of marijuana, and later extending that same guidance to states that permit recreational use of marijuana, except in certain cases (such as the sale to minors, violence, firearms, or diversion to states where marijuana use was illegal under state law). 

Today, Attorney General Jefferson B. Sessions, III, issued a memorandum for all United States Attorneys about marijuana enforcement that explicitly “rescinded, effectively immediately,” the Obama administrations prior policy guidance. The memo reiterates that the Controlled Substances Act prohibits the cultivation, distribution, and possession of marijuana and that these activities may also serve as the basis for prosecuting other crimes, e.g., money laundering.  The memo emphasizes that current federal statutes “reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime."  Further, the memo provides: 

        In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions. Attorney General Benjamin Civiletti originally set forth these principles in 1980, and they have been refined over time, as reflected in chapter 9-27.000 of the U.S. Attorneys’s Manual. These principles require federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.

Chapter 9-27.000 of the U.S. Attorney's Manual provides general Principles of Prosecution and can be found here.   The Training Division provides resources on controlled substances here