Laws, court decisions, and the Rohrabacher Amendment/power of the purse. Future changes?
1. The federal statutes (laws)
Laws, also called statutes, are passed by Congress. The Controlled Substances Act, 21 United States Code (USC) 841, makes it illegal to manufacture (grow), distribute (sell or give away), or possess with intent to distribute, marijuana and other *controlled substances*. Marijuana is *scheduled* as a controlled substance by the DEA because Congress gave DEA that authority. 21 USC 812(c)(10)(17), 877. Marijuana is classified as a Schedule I controlled substance * the highest, most dangerous classification available. Challenges to scheduling (1) are rarely allowed by the courts, United States v. Pickard et al, 100 F.Supp. 3d 981 (EDCA 2015), and (2) even if marijuana*s scheduling was changed, the statute (21 USC 841) would apply the same penalties. Those penalties include federal mandatory minimum prison sentences if the amount of marijuana is sufficient to trigger them; i.e,. 1,000 or more plants can cause a mandatory 10 years in prison; 100 or more plants can cause a mandatory 5 years in prison.
2. Federal jurisdiction
The federal government needs a basis * federal jurisdiction * to enact a federal criminal law and prosecute alleged violations of that law. According to the Supreme Court, any amount of marijuana or other *controlled substance* impacts interstate commerce and gives the federal government jurisdiction, even if the marijuana was grown at home and used only by the grower himself and no money ever changed hands. Gonzales v. Raich, 545 U.S. 1 (2005).
3. The Rohrabacher Amendment - protection for medical marijuana
Congress controls federal government spending. Since December 2014, Congress* government spending authorizations have prohibited the Federal Department of Justice (DoJ) from spending any money to interfere with medical marijuana programs authorized by state law. That monetary or budgetary restriction is commonly known as the Rohrabacher Amendment after the Orange County Congressman who was one of its sponsors. In U. S. V. McIntosh, 833 F.3d. 1163 (9th Cir. 2016) the Ninth Circuit Court of Appeals decided that the Rohrabacher spending restrictions prohibit the federal DoJ from prosecuting people who comply with state medical marijuana laws.
4. Rohrabacher and new legislation as a 'defense' to federal prosecution
The Rohrabacher Amendment prohibits (prevents) federal authorities from prosecuting people whose actions comply with state medical marijuana laws. The authorities can not prosecute because they are not allowed to use the money they get from Congress for that prosecution.
A Rohrabacher claim is raised before trial. For the defense, a big advantage to this claim is that * unlike almost any other federal pretrial claim * it can be appealed immediately if the court rules against the defense. In other words, a defendant can bring a denied Rohrabacher claim to the Ninth Circuit Court of Appeals without having to go to trial in district court before that appeal.
A Rohrabacher claim is not technically a defense to the charges (although it works like one). Rohrabacher prohibits the government from using money to prosecute individuals engaged in lawful state medical marijuana activities. Those individuals are entitled to a dismissal of federal criminal charges. However, Rohrabacher does not make those activities legal under federal law. Despite Rohrabacher, there is still a (technical) violation of federal law but the prosecutors are not allowed to use government funds to prosecute that violation. If Rohrabacher is not renewed with every (annual) government spending authorization or budget, its protection will disappear. There is a bill pending in the Senate to prohibit enforcement of federal marijuana laws in states where that enforcement conflicts with state law. Whether or not that bill will pass is uncertain.
5. Is there protection against federal prosecution of legal, state authorized recreational marijuana
The short answer is no, there is not an equivalent of a Rohrabacher Amendment protecting recreational marijuana activity that is legal under state law. Congressman Rohrabacher has been unsuccessful in efforts to achieve that. There is a bill pending in the Senate to prohibit enforcement of federal marijuana laws in states where that enforcement conflicts with any state law including recreational marijuana. Whether or not that bill will pass is uncertain.
6. What is the federal government's policy on prosecuting marijuana?
The federal government has the authority to prosecute anything marijuana related except activities protected by state medical marijuana laws. That leaves federal prosecutors with discretion to decide whether or not to charge a federal offense. What guides that discretion - is there a general policy or rules that federal prosecutors use to decide whether or not to prosecute?
The Cole memorandum is a valuable resource to consider. From August 2013 until January 2018, it provided federal prosecutors with *Guidance Regarding Marijuana Enforcement.* The Cole memo listed priorities for marijuana enforcement, including preventing the following - distribution of marijuana to minors, money from marijuana sales going to gangs or drug cartels, marijuana being sent from states where it is legal under state law to states where marijuana is not legal, firearms and violence in growing marijuana and marijuana grows on public land. (The entire Cole memo is on the internet.)
In January 2018, Attorney General Sessions rescinded the Cole memo. He indicated that marijuana offenses should be considered for federal prosecution in the same way as any other offense. He also said that Congress had determined that marijuana is a dangerous drug and that marijuana activity is a dangerous crime. Attorney General Sessions is in favor of more marijuana prosecutions, with longer sentences, than took place in the Obama era.
7. What circumstances are likely to lead to a federal criminal charge for marijuana?
Anything that was considered a priority under the Cole memo is even more of a priority for Attorney General Sessions. As noted above, the Cole priorities included preventing the following - distribution of marijuana to minors, money from marijuana sales going to gangs or drug cartels, marijuana being sent from states where it is legal under state law to states where marijuana is not legal, firearms and violence in growing marijuana and marijuana grows on public land. Marijuana that is perceived as marketed to minors * e.g. gummy bear edibles * is likely to get federal scrutiny especially it is related to large scale marijuana activity (growing or selling). Internet sales between different states, especially dark web sites using cryptocurrency, can lead to federal investigation and prosecution even with relatively small amounts of marijuana involved.
The Cole memo did not allow consideration of the size of a marijuana operation or its *commercial nature* in determining whether a federal prosecution should take place. That protection (or limitation) is now gone. An individual U.S. Attorney may use the size, scope, or profitability of marijuana activity in deciding whether or not to prosecute.
A U.S. Attorney may also consider the marijuana activity*s impact on a community in determining whether or not to prosecute. He might also consider a potential defendant*s individual characteristics, e.g. prior criminal history, good or bad reputation, etc., in determining whether or not to prosecute.
8. What circumstances minimize the chance of a federal prosecution?
Cautionary words to begin: The federal government has the authority to prosecute anything marijuana related except, while the Rohrabacher Amendment monetary restrictions remain in place, activities protected by state medical marijuana laws. Rohrabacher is subject to annual renewal or non-renewal. Even now while Rohrabacher is still in effect, medical marijuana activities remain (technically) illegal. The pending Senate bill would make marijuana activity legal under a state's law, also legal under federal law, but whether or not that bill will become law is unknown. With the cautionary words in mind, the least likely target of federal prosecution is medical marijuana activity in strict compliance with all state and local laws and regulations and with good accounting and tax compliance practices. Second on the least likely list, authorized recreational marijuana activity again in strict compliance and with good financial/tax practices. Small scale operation, as opposed to large scale and/or large profits, is likely to minimize federal interest in prosecution. Good relations with the immediate and extended community are also positive factors in minimizing federal interest in prosecution.
The more a marijuana related operation tends away from (or can be perceived to tend away from) strict compliance with all state and local laws and regulations, and/or tends toward the priorities in the Cole memo, the more likely it will be targeted for federal prosecution.
9. Predicting federal law and policy changes
As of late August 2018, there is a great deal of media speculation that Attorney General Sessions will be replaced after the November elections. Unlike some other members of the administration, Attorney General Sessions has consistently and publicly taken a hard-line against marijuana. If Sessions were replaced, the chances would increase for a statute or policy prohibiting enforcement of federal marijuana laws in states where that enforcement conflicts with any state law including recreational marijuana.
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