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By Lou Marzeles

U.S. Attorney General takes aim at state marijuana industry


August 16, 2017

U.S. Attorney General Jeff Sessions has sent a polite and quiet letter to Washington Gov. Jay Inslee and Washington Attorney General Bob Fergusion. Decorum notwithstanding, the letter made both officials very nervous and sparked a polite line-in-the-sand response.

“I was pleased to read that you share my concern for public health and safety and my belief that the federal and state governments should work together to address our country’s concerns with marijuana,” Sessions’ letter of three weeks ago stated. “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a crime. The Department remains committed to enforcing the Controlled Substances Act in a manner that efficiently applies our resources to address the most significant threats to public health and safety.”

The subtext of Sessions’ comments: pot is still federally prohibited, guys, and that’s a problem.

Sessions directly addressed the 2013 Cole Memorandum, issued by the Obama administration, that indicated the federal government had more important things to do than keep individual states in line with federal law when it came to marijuana. The Memorandum was turning a blind federal eye to the issue but also made it virtually certain that a showdown between states and the federal government would happen sometime. Many observers have written that showdown is imminent with the Trump administration and its clear signals that federal law inherently supersedes that of states when it comes to marijuana.

“I read with interest the statement in your letter that you ‘have worked ... to establish robust regulatory structures that prioritize public health and public safety’ and that you believe that the 2013 Cole Memorandum, its eight enforcement priorities, and related memoranda are an ‘indispensable’ part of the ‘framework’ in your state,” Sessions wrote. “In that regard, I would note the concluding paragraph: ‘nothing herein [in the Cole Memorandum] precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.’ Thus, the memorandum ‘does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.’ ”

Translation: proceed with marijuana laws at your own risk, because that rug could be pulled out from under you at any time.

“I also recently read the 2016 report by the Northwest High Intensity Drug Trafficking Area (HIDTA), entitled ‘Washington State Marijuana Impact Report.’ This report raises serious questions about the efficacy of marijuana regulatory structures in your state,” Sessions continued. He cited the following:

• “[T]he medical Market [for marijuana] is considered ‘grey’ due to the lack of regulation and oversight” and, furthermore, aspects of Washington’s regulatory structure for the ”medical market” have “unintentionally led to the growth of black Market enterprises”;

• The “recreationally licensed” marijuana Market also is incompletely regulated: the leading regulatory violation in that Market has been the “failure to utilize and/or maintain traceability” of marijuana products;

• “Since legalization in 2012, Washington State marijuana has been found to have been destined for 43 different states”;

• 90 percent of public safety violations of the state’s marijuana “regulatory structures” for ”recreational licensees” involved minors, according to data from the first year of Washington’s “recreational marijuana” laws. Violations include, for example, sales to minors and employment of minors;

• “One in five 10th-grade students reported riding with a driver who had used marijuana —9 percent reported driving within three hours of consumption,” according to the most recent

data in the report;

• “49 percent of young adult drivers who used marijuana in the past month had driven a car within three hours after using marijuana” and 64 percent of marijuana DUIs in Spokane Valley involved youth, according to data from the first year of Washington’s “recreational marijuana” laws;

• “61.9 percent of drivers do not believe marijuana makes a difference in their driving ability” and “[d]rivers with active THC in their blood involved in a fatal driving accident have increased 133.2% from 2010 (16) to 2014 (23)”;

• In 2014 alone, 17 THC extraction labs exploded; and

• There was a 54 percent increase in the number of marijuana calls to the State Poison Center from 2012-2014.

“These findings are relevant to the policy debate concerning marijuana legalization,” Sessions told the governor and attorney general. “I appreciate your offer to engage in a continuing dialogue on this important issue. To that end, please advise me as to how Washington plans to address the findings in the Northwest HIDTA report, including efforts to ensure that all marijuana activity is compliant with state marijuana laws, to combat diversion of marijuana, to protect public health and safety, and to prevent marijuana use by minors. I also am open to suggestions on marijuana policy and related matters as we work to carry out our duties to effectively and faithfully execute the laws of the United States.”

Not surprisingly, Inslee responded quickly, in conjunction with the governors with other states that have legalized marijuana. “As governors of states that have legalized marijuana in some form,” Inslee co-wrote, “we ask the Trump Administration to engage with us before embarking on any changes to regulatory and enforcement systems. The balance struck by the 2013 Department of Justice Cole Memorandum (Cole Memo) has been indispensable — providing the necessary framework for state regulatory programs centered on public safety and health protections.”

The response letter affirmed the states’ concerns over possible negative fallout over marijuana laws. “We sympathize, as many of us expressed apprehensions before our states adopted current laws,” it said. “As governors, we have committed to implementing the will of our citizens and have worked cooperatively with our legislatures to establish robust regulatory structures that prioritize public health and public safety, reduce inequitable incarceration and expand our economies.”

The governors then leaned heavily on the Cole Memorandum as a more-or-less binding authority, reflecting thinking at the time that presumed a resolution would be eventually forthcoming from a presumably benign future administration. Instead, they got Trump.

“The Cole Memo and the related Financial Crimes Enforcement Network (FinCEN) guidance provide the foundation for state regulatory systems and are vital to maintaining control over marijuana in our states,” the letter said. “Overhauling the Cole Memo is sure to produce unintended and harmful consequences. Changes that hurt the regulated Market would divert existing marijuana product into the black Market and increase dangerous activity in both our states and our neighboring states. Likewise, without the FinCEN guidance, financial institutions will be less willing to provide services to marijuana-related businesses. This would force industry participants to be even more cash reliant, posing safety risks both to the public and to state regulators conducting enforcement activity. The Cole Memo and FinCEN guidance strike a reasonable balance between allowing the states to enact reasonable regulations and the federal government’s interest in controlling some of the collateral consequences of legalization.”

So there, the letter essentially said. It also cited 28 states representing more than 60 percent of all Americans that have authorized some form of marijuana-related activity, though the majority of that is in the form of medical marijuana, a practice generally favored in light of its apparent efficacy.

“We look forward to working with you and your administration,” the response letter concluded. “We stand ready to have further discussion on how these important federal policies work in our states.”

Translation: take your best shot.


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