Despite state laws decriminalizing varying types of its use, cannabis remains a Schedule 1 controlled substance under the Controlled Substances Act of 1970. As a result, the sale, use, and distribution of cannabis remains a federal crime. Individuals and businesses that support cannabis companies could face federal criminal liability based on conspiracy and aiding and abetting laws. Companies that transact with money derived from cannabis sales could be subject to federal anti-money laundering prosecution, as they are using proceeds derived from criminal activity.
Because of the continued decriminalization efforts at the state level, the federal government has backed away from cannabis enforcement efforts, though primarily through policy statements that have proven not to be iron-clad. In August 2013, the U.S. Department of Justice (DOJ) released what became known as the Cole Memorandum. In it, the DOJ noted that federal enforcement was not a priority where states had implemented robust regimes to regulate cannabis. The DOJ further stated that federal cannabis enforcement resources would be concentrated on cases involving:
- revenue from the sale of marijuana going to criminal enterprises, gangs, and cartels,
- state authorized marijuana activity being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity,
- violence and the use of firearms in the cultivation and distribution of marijuana,
- distribution of marijuana to minors,
- the diversion of marijuana from states where it is legal under state law in some form to other states,
- drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use,
- the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands, and
- marijuana possession or use on federal property.
The Cole Memorandum was not law, however, and former Attorney General Jeff Sessions rescinded it on January 4, 2018.
However, during his Senate confirmation hearing, the new Attorney General, William Barr, stated, “to the extent that people are complying with state laws in distribution and production and so forth, we’re not going to go after that.” Barr reiterated this position in writing in a response to questions from senators prior to his confirmation, stating, “[a]s discussed at my hearing, I do not intend to go after parties who have complied with state law in reliance on the Cole Memorandum.” On April 10, Barr described the current situation as “intolerable” and said that if there is not sufficient consensus for one uniform federal rule against marijuana, “the way to go is to permit a more federal approach so that states can make their own decisions within the framework of the federal law … so we’re not just ignoring the enforcement of federal law.”
Nevertheless, it would be a mistake to assume that the federal authorities have completely backed off of cannabis enforcement. Consistent with the Cole Memorandum, recent enforcement actions by US federal authorities indicate that federal agencies are focusing their resources on larger sale illicit drug production, sale, and distribution. For example, in March 2019, the DEA raided an apartment in Ohio with the assistance of the local sheriff’s office and arrested and charged two individuals with felony possession of marijuana and cocaine. It was believed that the individuals were going to market the drugs to students at Ohio State University. The DEA had been tracking the shipment of the drugs from other western states. About $2.3 million in drugs was seized which included marijuana, hashish, illegal mushrooms, LSD, cocaine, and THC vape cartridges.
In a separate case in March 2019, local authorities in Georgia, the DEA, and the FBI raided five grow houses and seized more than $35 million in drugs. Most of the drugs were marijuana, but also included THC oil, THC candy, cocaine, and illegal mushrooms. The authorities also seized 22 guns. According to authorities, the grow houses were connected to a larger international organization that serviced not only the Atlanta metro area, but also the southeastern region of the United States. In the same month, the FBI arrested five individuals in Mississippi on weapons charges, two of whom were also charged with possession of marijuana with intent to distribute.
These cases show that federal authorities are focusing their resources on matters that implicate one or more of the points outlined in the Cole Memorandum, such as weapons violations and trafficking across state lines. This is not to say that federal authorities will never pursue cannabis matters that do not implicate one of the Cole Memorandum’s priorities. Moreover, if a person violates a state’s cannabis laws by, for example, failing to obtain proper licensing or engaging in cannabis transactions in a state where such transactions are illegal, they can expect authorities to enforce state cannabis laws. We will continue to report on enforcement trends at both the state and federal levels so that readers can understand exactly what law enforcement is likely to pursue at a time when the law is so uncertain.
