Editor's Note: This post originally appeared in The Hill on January 7, 2018.
One of the great social and political experiments of this decade, marijuana legalization, faces its greatest existential threat: Jeff Sessions.
Twenty-nine states have exercised their rights and legalized marijuana in some form for medical or adult use, despite marijuana possession remaining a federal crime. The anti-commandeering doctrine, long recognized as part of the 10 amendment, protects states from having to use their resources to enforce federal law.
State laws that contradict federal laws come at the cost of political and policy tensions that can only be eased by federal guidance. For the last four years, citizens, states, and businesses have relied on Obama era guidance like the Cole Memo’s objectives and goals as a way to proceed with state-legal marijuana without fear of overreaching federal intervention.
Sessions obviously believes that state-sanctioned marijuana is something he cannot live with. However, his recent move to rescind the Cole Memo and provide no national guidance on how the federal government will interact with state-legal marijuana will not roll back the tide of legal marijuana. Instead, it will hurt public health and public safety.
Unfortunately for Sessions, state and local law enforcement officials perform the vast majority of drug-related arrests. Sessions’ spectacularly ill-advised move does not empower him to co-opt these state and local resources; it simply directs his limited federal resources to go after marijuana enterprises that might be complying with previous federal guidance, state laws and regulations.
To follow through on the imagery of an actual war on drugs, the Department of Justice serves as one of the more elite squadrons on the field — smaller in number, but with some top talent and the best equipment. They can and should only be deployed sparingly for the nation’s biggest and most complicated law enforcement challenges.
The Cole Memo was a strategic retreat from a full-frontal assault on marijuana criminalization. It recognized that the Department of Justice did not have the resources to battle every marijuana case, but instead that it should focus on marijuana sales that involved children, diversion out-of-state, driving while high, or cartel involvement.
It also freed up resources so that the Department of Justice could focus on more pressing issues, like the opioid crisis. Now, General Jefferson Beauregard Sessions has turned to his squadron and told them to attack the field at random. One can be forgiven for imagining him ordering his troops to charge a hill at the Battle of Shiloh.
This move was all the more confounding because Sessions waited until immediately after California had begun legal marijuana sales. If he had acted even a few weeks earlier, there could have been time for the largest state in the nation to communicate with its United States Attorneys to figure out the best next steps.
Initial reports indicate that United States Attorney learned about the new memo from the news. The only justification for waiting until after the point of no return, and not informing the attorneys now charged with future enforcement, appears to be that Sessions wants to create chaos.
Sadly, there will be real consequences to this enforcement shift. While the state licensing and enforcement systems will remain in place, an increase in the risk of federal prosecution may deter good actors from entering the industry.
Every industry has some people interested in long-term gain, who are more risk-averse and tend to be more law-abiding. Every industry also has people who are interested in short-term profits, willing to take on risk but have fewer scruples about breaking the law. Sessions is effectively scaring off the more legitimate actors — people who would create systems that keep marijuana away from children, educate consumers on safe and responsible use, and prevent revenue from falling into the hands of cartels.
Even worse, more risk-averse ancillary businesses, such as banks, will decide to stay out altogether. This means we will see more cash on the street and less financial accountability. This is a recipe for violent robberies, ad hoc money laundering or even organized crime. It wasn’t liquor distribution that created Al Capone, it was the cash that needed laundering as a result of federal property. It may well be that this is Sessions’ plan.
He will weaken the effectiveness of a tax and regulate system and then be able to point to that same system and claim proof that legalization does not work. But such a strategy elevates ideology over outcomes. It puts his need to be right over the well-being of the citizens he has sworn to protect.
Marijuana legalization has its problems. Evidence suggests some people think it is acceptable to use marijuana and drive, and it may be leading to more deaths on the road. People are abusing home grow laws to grow large amounts of marijuana on their property for the purpose of out-of-state-diversion or other illegal sales; in some cases this has led to violence, property destruction, and environmental hazards.
These were the exact issues the Cole Memo addressed, and there are useful data coming from the regulated frameworks that can be used to inform future changes to mitigate these issues short of inconsistent and overreaching federal intervention.
Finally, legalized states have also shown substantial promise. In Colorado, we made a lot of progress and have seen some encouraging data. Youth use, by all measures, has either remained steady or declined. In fact, the most recent federal data have shown a 28 percent decrease in youth use since commercial sales began. Last year, Colorado saw over $225 million in marijuana tax revenue. Violent crime and property crime have also shown no discernible impact from the legalization of marijuana. All this while thousands of Coloradans a year are no longer arrested for marijuana crimes.
Sessions has abandoned what progress has been made over the last five years in favor of reigniting a war on drugs — a war which was lost decades ago and one from which he has no exit strategy. It is hard to rationalize Sessions’ personal interest in beating the war drum against marijuana especially when so much progress has been made in the regulated markets.
This issue is not going away because Sessions wants it to. A Gallup poll from last October showed 64 percent of Americans in favor of legalizing marijuana use, with 51 percent support from Republicans. It is time for states to rise to the occasion, mobilize resources, and campaign Congress and the Trump administration for a more reasonable approach.