While President Obama was in office, public attitudes towards recreational and medicinal marijuana changed, and the laws changed in many states as well. Legalized marijuana has become common, with many states allowing marijuana use for medical purposes and a growing number of states also legalizing recreational use. However, even as laws changed on the state level, marijuana remained a controlled substance under federal law with strict penalties imposed for growing, buying, and utilizing marijuana.
In response to the changes on the state level, the Obama administration issued guidance in a 2013 memo created by the deputy attorney general. The DOJ memo indicated that the federal government would focus only on a limited number of cases, including when marijuana was sold across state borders, was grown on federal lands, when it was sold to minors, or when gangs or organized crime became involved in the cannabis trade. Outside of these circumstances, prosecutorial discretion was advised and federal resources would not be used to pursue investigations or criminal cases in most cases.
Now, however, the Department of Justice has announced changes to this policy and attorney general Jeff Sessions gave U.S. attorneys authority to aggressively enforce federal anti-marijuana laws even in states where marijuana is legal. If you are involved in the marijuana trade, you should consult with a federal criminal investigation attorney to understand the implications of this decision and to get help if you come under investigation.
When Jeff Sessions issued the new DOJ directive, a senior Justice Department official indicated that the change to the Obama-era policy was occurring because the prior policy “was perceived to have created a safe harbor for the industry to operate,” according to NBC News.
It is indeed true that the marijuana industry flourished under Obama, with seven states – Alaska, California, Maine, Massachusetts, Nevada, Oregon, and Washington – now permitting recreational use and 28 states permitting medical marijuana use.
The businesses that have been set up in response to the leniency on the federal level and the legality on the state level are unlikely to cease operation even in light of the new directive, which means more of these cannabis businesses could find themselves subject to investigations by federal officials depending upon how U.S. attorneys respond to the Justice Department's new directive.
There is substantial concern about the impact that the directive could have, with a spokesperson from Human Rights Watch warning that the directive could “spike arrests and fuel mass incarceration.” Courts are also likely to be faced with challenging cases in which individuals face federal charges for conduct that is perfectly legal within the states where they were operating business enterprises.
Those who are involved in the marijuana business should seek appropriate legal guidance to understand their rights and to get help if they become the target of an investigation by a U.S. Attorney related to their involvement with cannabis products. A federal criminal investigation attorney can provide advice on responding to a federal investigation and on protecting your rights if the Department of Justice takes action.