Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, January 8, 2018

US Attorney for Massachusetts refuses to provide more guidance on federal prohibition prosecution plans

As reported in this AP article, the "top federal prosecutor in Massachusetts offered no guarantees on Monday that he would take a hands-off approach to legalized pot, injecting a new layer of uncertainty and confusion into the commercial marijuana industry as it looked to gain a foothold in the state." Here is more:

U.S. Attorney Andrew Lelling said in a statement that while he understood the desire for guidance on the federal approach to the state’s voter-approved recreational marijuana law, he "cannot provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution." Such determinations would be made on a "case-by-case basis," he added.

The Yes on 4 Coalition, which spearheaded the 2016 ballot campaign, had publicly called for Lelling to provide "clear, unambiguous answers" to several questions, including whether his office would prosecute businesses that are granted licenses by state cannabis regulators to grow, produce, test or sell marijuana legally in Massachusetts....

Lelling took office in December after being nominated by President Donald Trump and confirmed by the U.S. Senate.  His comments on Monday expanded on an earlier statement last week that promised enforcement of serious federal crimes but did not directly address the recreational marijuana issue....

Jim Borghesani, a Massachusetts spokesman for the Marijuana Policy Project, called the prosecutor’s comments "ominous."  Pro-marijuana groups fear the change in tone from the Justice Department and federal prosecutors will send a chill through the nascent cannabis industry, discouraging those looking to start or invest in those businesses. "I don’t think any business would ever want to open its door and have fears on the first day that the FBI is going to be standing on their doorsteps," said Borghesani....

The Cannabis Control Commission, a five-member panel created to regulate marijuana in Massachusetts, has pledged to move forward with a process that foresees the first commercial pot shops opening in July. Republican Gov. Charlie Baker, who said last week that rescinding the Cole Memorandum was the "wrong decision," continued to support the commission’s work and would provide adequate funding for it, a spokeswoman said Monday.

The "Statement By U.S. Attorney Andrew E. Lelling Regarding Federal Marijuana Enforcement" is available at this link.  I understand fully why officials and reform advocates in Massachusetts would like to get some more clear and definitive enforcement guidance as the state moves forward with developing and implementing rules for voter-enacted marijuana reform.  But both the tone and seeming intent of the decision by Attorney General Session to rescind the Cole Memo suggests that the Department of Justice is eager to avoid giving clear guidance to state actors and the marijuana industry concerning enforcement plans and priorities in this arena.

http://lawprofessors.typepad.com/marijuana_law/2018/01/us-attorney-for-massachusetts-refuses-to-provide-more-guidance-on-federal-prohibition-prosecution-pl.html

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