Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, May 8, 2018

A left-handed thanks from head of Drug Policy Alliance to Attorney General Jeff Sessions for his approach to marijuana policy

Maria McFarland Sánchez-Moreno, the executive director of the Drug Policy Alliance, has this notable recent commentary in USA Today under the headline "How anti-marijuana Jeff Sessions became the best thing to happen to pot legalization."   This piece brings to mind some political points I made in this 2016 post not long after Jeff Sessions was nominated to be Attorney General by then Prez-elect Trump.  Here are some excerpts from the commentary:

Jeff Sessions hates marijuana.  He’s made that plain in multiple colorful quotes, from stating that “good people don’t smoke marijuana” to arguing that “we need grown-ups in charge in Washington to say marijuana is … in fact a very real danger.”  But he may also turn out to be the best thing that’s happened to the marijuana reform movement in Washington.

For years, marijuana reform has moved at a snail’s pace in Washington.  Even as more and more states — now 29 — legalized medical marijuana and increasing numbers legalized adult use of marijuana, Congress held back.  Occasional efforts to remove marijuana from the schedule of controlled substances have been rejected.  And advocates have had to fight every year to make sure that Congress included an amendment to its appropriations bills, to protect states that legalized medical marijuana from federal interference....

But in January, Sessions rescinded the Cole memo.  Perhaps he thought that the decision would chill further reform or spread fear among the industry.  Instead, his move seems to have galvanized policymakers.  That same month, Vermont announced that it had legalized marijuana.  Cities like Albuquerque, Savannah, Ga., and Baton Rouge are decriminalizing it. And now, we’re seeing a sea change in Washington, in both parties.

In response to Sessions’ decision, Sen. Cory Gardner, a Republican from Colorado, threatened to block all Justice Department nominees.  Eventually, he said he extracted from Trump a commitment that the Justice Department would not interfere with legal marijuana in Colorado, and that Trump would support legislation to protect states that had legalized medical and adult use marijuana.

Last month, Senate Minority Leader Chuck Schumer, D-N.Y., — historically not a big proponent of rolling back criminal laws like those on marijuana — announced that he would be introducing legislation to remove marijuana from the list of controlled substances, essentially leaving it up to the states to decide how to handle it.  While this is not the same, even Sen. Mitch McConnell, R-Ky., is pushing a bill to legalize industrial hemp.  His longtime colleague, former House Speaker John Boehner, recently made a high-profile entry into the medical marijuana industry....

And growing numbers of members of Congress are now sponsoring the Marijuana Justice Act, which Sen. Cory Booker, D-N.J., introduced last August.  That bill, modeled after California’s Proposition 64, would not only legalize marijuana, but also begin to repair the devastation wrought by decades of marijuana prohibition, allowing those convicted of possession to clear their records, access to the marijuana market for the communities most harmed by prohibition, and reinvestment of marijuana taxes in those communities....

Sessions himself seems to have been forced to moderate his rhetoric.  In response to questions about marijuana enforcement at a recent Senate hearing, he said that his priorities lay elsewhere, and insisted that it was up to Congress to change the laws.

Of course, Sessions or some overeager U.S. attorney may still try to go after legal marijuana.  Trump may renege on his commitment to Gardner.  Things may still get worse on federal marijuana policy before they get better.  But with more than 60% of the U.S. public behind reform, including majorities among young liberals and conservatives alike, there’s only so long that the federal government can continue to hold out against reform.  And thanks to Sessions, change may come sooner than we thought.

In my 2016 post, which I titled "Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive," I reviewed some of the reasons why I thought it would be very foolish politically for the Trump Administration to aggressively enforce federal marijuana prohibition.  And critically, despite AG Sessions obvious disaffinity for state marijuana reforms, he still has made no serious effort to aggressively enforce federal marijuana prohibition.  I surmise he would like to and he has some folks urging him to, but he knows that the political winds are blowing against any enforcement efforts here, and he clearly has other political and legal priorities.  

Of course, after a year of internal deliberations, AG Session did pull back the Cole Memo, but this commentary astutely highlights how this (relatively modest) move has served to galvanize political forces supporting marijuana reform at the federal level.  Any more significant marijuana enforcement, especially against any prominent state-compliant businesses, would seem likely to only enhance the political backlash and further elevate federal marijuana reform in public and political debates.    Modern marijuana policy and practice thus serves as another great and important example of my concluding point in my prior post: the "Framers gave us a wonderful federal system of check-and-balances that has been pretty effective at keeping the big bad federal government from doing too many stupid things that are obviously against the considered will of the people."

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