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Federal Prosecution of Cannabis Charges in Legal States
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Federal Prosecution of Cannabis Charges in Legal States: An Overview
The legal landscape surrounding cannabis in the United States is complex and rapidly evolving. While many states have legalized medical or recreational cannabis use, it remains illegal at the federal level under the Controlled Substances Act (CSA). This conflict between state and federal law has created confusion and uncertainty, especially for cannabis businesses operating legally under state law.
In this article, we’ll provide an overview of federal prosecution of cannabis charges in states that have legalized cannabis. We’ll look at key factors federal prosecutors consider, potential defenses, and the implications of the 2018 Cole Memorandum being rescinded. We aim to help lawyers advise cannabis industry clients on risks and navigate this tricky legal area.
Under the CSA, cannabis is classified as a Schedule I drug, meaning it has no accepted medical use and high potential for abuse. The federal government can prosecute any cannabis-related offenses, even in states that have legalized medical or recreational cannabis. Key federal agencies involved in investigating and prosecuting cannabis crimes include the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), and Department of Justice (DOJ).
However, the DOJ’s ability to prosecute cannabis crimes is limited by a rider in recent federal appropriations bills known as the Rohrabacher-Farr amendment. This prevents the DOJ from using federal funds to interfere with state medical cannabis laws. A key 9th Circuit court decision in United States v. McIntosh also bars federal prosecution of conduct that complies with state medical cannabis laws.
So federal prosecution currently focuses mainly on recreational cannabis activity, large-scale illicit production and trafficking, and conduct that clearly violates state law.
Factors Considered in Federal Cannabis Prosecution
In states that have legalized cannabis, U.S. Attorneys have discretion over whether to prosecute federal cannabis offenses. Key factors they consider include:
- Public safety threats – large-scale trafficking, cannabis sold to minors, cannabis farms harming public lands
- Compliance with state law – operations that violate state regulations more likely to be targeted
- Business ties to organized crime – gang involvement, money laundering
- Prior offenses – repeat offenders more likely to be prosecuted
Notably, in 2018 the Cole Memorandum that had guided federal cannabis prosecution priorities was rescinded by then-Attorney General Jeff Sessions. This further expanded prosecutorial discretion.
Potential Defenses in Federal Cannabis Cases
Those facing federal cannabis charges do have some potential defenses:
- Challenging evidence/searches that violate state laws
- Seeking case dismissal under Rohrabacher-Farr amendment
- Using McIntosh ruling to block prosecution for state-legal medical cannabis
- Arguing “entrapment by estoppel” – misleading assurances from state/local officials
- Presenting necessity/duress defense – arguing violations unavoidable
However, these defenses don’t always succeed against federal prosecution. Much depends on prosecutors’ discretion and judges’ interpretation of complex state vs federal cannabis law conflicts.
Implications of Rescinded Cole Memo
In 2013, Deputy Attorney General James Cole issued guidance to federal prosecutors in the form of the Cole Memorandum. This set out federal cannabis enforcement priorities, including preventing distribution to minors, violence and firearms, drugged driving, and public health consequences.
Rescinding the Cole Memo in 2018 effectively gave federal prosecutors more leeway to go after state-legal cannabis operations. Some key implications include:
- Increased uncertainty for cannabis businesses following state regulations
- More aggressive federal enforcement possible against recreational cannabis
- Healthcare providers more wary to recommend medical cannabis
- Banking access remains very limited without guidance
However, so far large-scale federal raids haven’t materialized since the memo was rescinded. Prosecutors still rely partly on Cole Memo criteria, but have more flexibility to target state-legal entities. This unpredictability continues to chill the growth of the cannabis industry.
The conflict between federal prohibition and state legalization has created an unstable landscape riddled with gray areas. Federal prosecutorial discretion combined with varied legal defenses make outcomes difficult to predict when federal charges are brought against those following state cannabis laws. Lawyers advising clients in the cannabis industry must stay up-to-date on this rapidly shifting area at the intersection of state and federal law.