Attorney General Jeff Sessions’ memo reversing the hands-off approach to state laws allowing for the medical and/or recreational use of marijuana has introduced a great deal of tension between federal and state laws. While marijuana-friendly states were not given absolute freedom from federal law under Obama and former deputy Attorney General Jim Cole, they were nevertheless granted the oversight of U.S. attorneys, so long as the in-state marijuana industry did not impose upon other federal laws. Sessions’ memo undoes this set-up and allows federal attorneys to “follow well-established principles when pursuing prosecutions related to marijuana activities,” regardless of state and local laws. This poorly defined system is confusing, irrational, and draws heavily on the ugly racialized history of drug laws.
Sessions resents and seeks to directly challenge the marijuana laws in these states, but lacking the authority to dismantle them entirely, has created this strange legal paradox.
The problem here lies in the very logic of the motion to reverse the rules the Cole memo established. The Cole Memo was put forward in 2013 as a direct response to the increasing number of states moving to legalize marijuana, beginning with Colorado and Washington in 2012. Encouraging U.S. attorneys to look the other way in these states acted as a negotiation between the existence of the Controlled Substances Act, which has been in place since 1970, and the sovereignty of the states to vote for legalization. In other words, Sessions’ move to crack down on all 50 states puts federal and state laws in a nonsensical contradiction with one another, as he is reversing a decision predicated on a changing United States. This “return to the rule of the law” is a return to a rule of law that governed a United States without legalized recreational marijuana, and it makes no sense in the nation’s current context. Perhaps Sessions is trying to create an atmosphere of conflict in law, in case this strange disparity in state and federal rules is taken to the Supreme Court, with the hope that a Trump Court would back him.
This “return to the rule of the law” is a return to a rule of law that governed a United States without legalized recreational marijuana, and makes no sense in the nation’s current context.
Regardless, congressmen on both sides have lambasted the memo with outrage and confusion. Several have accused Sessions of pursuing his own personal agenda against the drug. Indeed, Sessions put forward the memorandum a mere three days after California began selling legal
marijuana for recreational use, which has raised more than a few eyebrows. This timing, along with Sessions’ history of extremism regarding marijuana, makes the reactionary nature of his memo obvious. Sessions has famously declared that the drug is “only slightly less awful” than heroin and asserted that “good people don’t smoke marijuana.” Under the Trump administration, Sessions established a subcommittee to the Task Force on Crime Reduction and Public Safety dedicated to marijuana enforcement policy, and sought to dismantle Rohrabacher-Farr, an amendment protecting states with legal medical marijuana from federal prosecution. He resents and seeks to directly challenge the marijuana laws in these states, but lacking the authority to dismantle them entirely, he has created this strange legal paradox.
When Sessions speaks to negative community impact of marijuana use in a state like California, he is picturing the teenagers in a Compton park, not the ones in a Stanford dorm room.
Amidst all this chaos, the most egregious part of this crackdown lies in its racial undertones. The broad statement of allowing federal prosecutors to take legal action where they see necessary seems alarmingly selective. The memo states that prosecutors should make their decision based on “the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.” These motivations of seriousness and impact on the community call to mind the rhetoric of Reagan’s racially charged war on drugs, an especially poignant comparison considering Sessions’ support of private prisons. While it seems unlikely that conservative U.S. attorneys will now prioritize marijuana crimes, the language remains dangerous. Reagan’s alarmist attitude regarding an American drug crisis, combined with his establishment of mandatory minimum prison sentences and targeting of black communities, proved detrimental to the African American community. Sessions’ crackdown on marijuana continues these failed trends. In cases where U.S. attorneys do decide to prosecute, statistics show us the defendants will be disproportionately black. According to the ACLU, black people and white people use marijuana at about the same rate, but the arrest rates for marijuana possession (which compose 52% of all drug arrests) for black people is about four times that of white people. One can assume that when Sessions, a man whose political reputation has continually faced accusations of racism, speaks to negative community impact of marijuana use in a state like California, he is picturing the teenagers in a Compton park, not the ones in a Stanford dorm room. In a nation that seemed to be normalizing both the medical and recreational use of marijuana, a black young adult may still be at risk of losing a great deal of socioeconomic mobility for the possession of a small amount of marijuana, even in a state where they thought it to be legal. In both legal and social justice spheres, Sessions’ agenda moves the nation backwards.
Max Lichtenstein ‘20 studies in the College of Arts & Sciences. He can be reached at firstname.lastname@example.org.