- Posted by Ryan Reaves
- On January 8, 2018
- adult use, cannabis, Cole, DOJ, Federal, Jeff Sessions, Medical, Ogden, policy, prohibition, recreational
AG Sessions Rescinds Ogden, Cole, & Wilkinson Memos
The cannabis industry nationwide is reacting to a memo released by Attorney General Jeff Sessions, just days after recreational sales came online in California, which rescinds all previous memos on federal cannabis enforcement released by the DOJ. On Thursday, January 4, Sessions’ “Marijuana Enforcement” memo reversed the guidelines developed from 2009 to 2014 under former Deputy Attorney Generals David Ogden, James Cole, and Director of the Executive Office for U.S. Attorneys Monty Wilkinson.
In the one-page memo, Sessions endorses existing federal laws, citing the Controlled Substances Act, Bank Secrecy Act, and statues relating to money laundering to support the prevailing federal position that “marijuana is a dangerous drug and marijuana activity is a serious crime”. Rather than state explicitly that there would be a federal crackdown on the cannabis industry, the “Marijuana Enforcement” memo reverses guidelines developed during the Obama administration which provided some protections for states developing medical cannabis systems by deprioritizing the use of federal resources by U.S. Attorneys against state compliant cannabis producers who adhered to certain guidelines. Sessions’ reversal of these guidelines will allow U.S. prosecutors to enforce federal laws at their discretion, guided by principles originally established in 1980 by Attorney General Benjamin Civiletti.
Sessions’ Undoing of Obama Era Guidelines
This action creates a policy void, reversing guidelines which allowed the cannabis industry to take shape and flourish, and although this action is not enough to sabotage the growing industry, it gives U.S. Attorneys more power to enforce outdated federal laws.
Without the Ogden and Cole guidelines in place, U.S. Attorneys have at their discretion to use federal resources to bring cases against cannabis producers despite state medical and adult-use laws. In July 2017, Sessions released A.G. Order No. 3946-2017, reversing former Attorney General Eric Holder’s Order 3488-2015, which placed specific limitations on the federal adoption of asset forfeitures through the Equitable Sharing Program within the DOJ. Unless state laws exist limiting federal adoptions like California’s SB443, law enforcement agencies that use civil or administrative asset forfeiture against cannabis producers can have those seizures adopted by a federal entity, to be tried in federal rather than state court. By rescinding the Ogden and Cole memos and reversing protections which sought to limit the corrupt use of civil asset forfeiture, Sessions has in one year, intentionally undone nearly every federal protection the fledgling cannabis industry gained since 2009.
Memos Rescinded by Sessions (Click Memo Title to Download Full Document)
Ogden, David: “Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana”
released Oct. 19, 2009:
- Deprioritized the use of federal resources against “individuals whose actions are in clear and unambiguous compliance with existing state [medical cannabis] laws”.
- Established list of activities that would disqualify individuals from “clear and unambiguous compliance”.
- unlawful possession or unlawful use of firearms;
- sales to minors;
- financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
- amounts of marijuana inconsistent with purported compliance with state or local law;
- illegal possession or sale of other controlled substances; or
- ties to other criminal enterprises.
- “…intended solely as a guide to the exercise of investigative and prosecutorial discretion.”
Cole, James: “Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use”
released June 29, 2011:
- Upheld the deprioritized use of federal resources against compliant state medical cannabis producers established in the Ogden memo.
- Stated explicitly that the Ogden memo “was never intended to shield [cannabis] activities from federal enforcement action and prosecution, even when those activities purport to comply with state law.
Cole, James: “Guidance Involving Marijuana Enforcement”
released Aug. 29, 2013:
- Set federal enforcement priorities specific to cannabis. These enforcement priorities would be reflected in state and local laws developed since the memo was produced. California state cannabis regulations that we have today were written to adhere to the enforcement guidelines described in this memo.
- Eight federal enforcement priorities included:
- Preventing the distribution of marijuana to minors;
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
- Preventing marijuana possession or use on federal property.
Cole, James: “Guidance Regarding Marijuana Related Financial Crimes”
released Feb. 14, 2014:
- By outlining the federal laws and statutes which put financial institutions at risk from handling proceeds generated by cannabis business, this memo creates a roadmap of federal reforms which need to occur before national banking institutions can seriously consider financing the cannabis industry.
- This memo recommended that “in determining whether to charge individuals or institutions with any of [the provided] offenses based on marijuana related violations of the CSA, prosecutors should apply the eight enforcement priorities described in the August 29 guidance”.
- Although this memo was no guarantee that financial institutions could be sheltered from legal risk when handling cannabis accounts, it reduced the risk to financial institutions of federal charges if strict adherence to the “eight enforcement priorities” was followed. (Note: The institutional procedures necessary for proving strict adherence to the enforcement priorities can be tedious and a burden most national banking institutions deem too great given the risks. However, a very small number of credit unions work with the cannabis industry, due in some part to the guidelines provided by this memo.)
Wilkinson, Monty: “Policy Statement Regarding Marijuana Issues in Indian Country”
released Oct. 28, 2014.
- Applied Cole’s “eight priorities” guidelines for U.S. Attorneys in enforcing federal cannabis laws specifically in relation to sovereign indigenous nations, whose lands often traverse federal districts and state borders.
- “The eight priorities in the Cole Memorandum will guide United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country.”
- “Consistent with the Attorney General’s 2010 Indian Country Initiative, in evaluating marijuana enforcement activities in Indian Country, each United States Attorney should consult with the affected tribes on a government-to-government basis.”
Call Your Representatives!
In his own words, Jeff Sessions has endorsed the CSA and prevailing prohibitionist federal policies as “well-established guiding principles, and all “previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately”.
Now is the time for our representatives in Congress to take the initiative and amend the Controlled Substances Act and reschedule cannabis! Contact your Congressmember and tell them that the time is now to end the federal prohibition of cannabis! If there is a silver-lining in this, it’s that Congress can no longer defer to the Ogden and Cole memos as “good enough for now”… Congress MUST act, and they will only act if we push them!
Ryan Reaves is a policy analyst for CannaBusiness Law and Master of Public Policy candidate at Mills College in Oakland, California.
Featured Image by: Gage Skidmore