U.S. Attorney General Jeff Sessions Repeals the “Cole Memo” – The Feds Take Aim at Marijuana Use

Attorney Mark B. DavisIn early January 2018, U.S. Attorney General Jeff Sessions announced that he had repealed the 2013 “Cole memo”, thus removing the primary barrier that had restrained federal prosecutors from pursuing marijuana cases in states that have legalized the drug.  This action by the Attorney General signals a major change in the Department of Justice’s marijuana enforcement policy.

By way of background, marijuana remains a Schedule 1 drug under the federal drug regulation scheme.  This means that the U.S. does not recognize any legitimate medical benefit from marijuana use, and it is not recognized as a drug that can be dispensed for such purposes, even with a prescription.  Most uses of marijuana that are permitted under federal law are for research purposes only.

In the last 15 years or so, many states have taken it upon themselves to create various statutory provisions to permit the use of marijuana for medical purposes.  Nine states and the District of Columbia have “legalized” marijuana for recreational use.  Michigan currently has a medical marijuana statute, and it is highly likely that legalization for recreational purposes will be on the 2018 ballot for Michigan voters.  Most polls show that nationally over 50 percent favor recreational legalization, and that over 90 percent agree that medical marijuana should be legal.

During the Obama administration, and as far back as the Carter years, there have been federal guidelines for enforcement of marijuana crimes.  In those guidelines, individual use had a very low enforcement priority.  Under the 2013 Cole memos, the Obama administration took a “hands off” approach to use in states where medical marijuana was legal, giving the nation’s 93 U.S. Attorneys broad latitude to exercise prosecutorial discretion regarding marijuana-related offenses.  The memo provided a measure of security for dispensary owners, growers and consumers.

The recent change to “prosecutorial discretion” by Attorney General Jeff Sessions has set aside the policies set forth in the Cole memos that were geared toward having enforcement decision reviewed on a case-by-case basis.  The repeal of the Cole memo raises a number of issues and potential problems.  The change has resulted in strong bipartisan objections, most particularly in states that are collecting tax revenue from recreational marijuana sales.  In addition, a political battle is brewing at the national level. The Rohrabacher-Blumenauer Amendment prohibits the use of federal funds to enforce federal law against state medical marijuana programs.  That Congressional amendment is in place until at least January 19, 2018 and will likely be part of any deal to continue funding the federal government.  Lastly, marijuana supporters and criminal justice reform advocates view this as a huge step backwards in the justice process.

Recently, the new interim US. Attorney for Eastern Michigan, Matthew Schneider, was interviewed on WJR.  He was asked specifically about the U.S. Attorney General’s new policy. Mr. Schneider did not indicate that he saw the repeal of the Cole memo as a serious change to his focus or enforcement philosophy.

All in all, these recent changes, in and of themselves, likely will not significantly affect how federal enforcement actions are being carried out within the states against medical marijuana.  It is very unlikely that the federal government will want to step in to prevent legitimate medical marijuana use that is authorized under state law, though the repeal of the Cole memo would appear on the surface to make this more of a possibility.

In any event, we do not at this time foresee that this change in the law at the federal level will significantly impact the legitimate use of medical marijuana in Michigan condominiums or homeowners associations.  To the extent that associations wish to limit or prohibit medical marijuana use in the communities, they would be best served by amending their bylaws to specifically address the issue, rather than expecting the federal government or law enforcement to provide any direct assistance.

Again, we cannot stress how quickly this area of the law is evolving.  Please check back with our blog for further updates in 2018 on events that will continue to shape these issues, such as the current federal budget talks and the 2018 Michigan legalization ballot proposal.

Mark B. Davis is an associate attorney with the firm.  He has extensive experience in community association law and has been with the firm since 2007.  Mark served honorably in the U.S. Army, achieving the rank of Sergeant as an infantry soldier. 

His particular expertise in community association law includes marijuana law, collections, litigation (both federal and state), Fair Housing matters, and bankruptcy law. He is a member of the Marijuana Law Section of the State Bar of Michigan and frequently conducts seminars for community association organizations (such as UCOM) as well as the ZDF Condo & HOA B.E.A.T. Program on the subject.

You can reach Mark at our Plymouth office at 734-459-0062 or via email at mdavis@zdfattorneys.com.


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