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Sessions ends policy that allowed legal pot, disrupting state markets

Tribune News Service logo Tribune News Service 1/4/2018 By Kate Irby, McClatchy Washington Bureau

a close up of a plant: Attorney General Jeff Sessions is rescinding the longstanding federal policy permitting states to legalize recreational pot, placing thousands of marijuana businesses in California and other states operating legally under state law at risk to federal raids and seizures. © Dreamstime/TNS/Los Angeles Times/TNS Attorney General Jeff Sessions is rescinding the longstanding federal policy permitting states to legalize recreational pot, placing thousands of marijuana businesses in California and other states operating legally under state law at risk to federal raids and seizures.

WASHINGTON - Attorney General Jeff Sessions on Thursday rescinded an Obama-era policy that paved the way for states to legalize marijuana. Instead, Sessions will allow federal prosecutors in states where pot is legal to decide how to enforce the federal ban on marijuana sale or possession.

Sessions made the announcement just days after the recreational marijuana market opened in California. Many states have legalized some form of medical marijuana, and a handful have legalized recreational use of the drug.

Under former President Barack Obama, the Department of Justice indicated to states in 2013 that while marijuana remained illegal under U.S. law, federal law enforcement officials would not interfere in states that chose to legalize cannabis as long as they hewed to certain restrictions such as barring minors from being able to buy it and prohibiting transport of the drug into states where it wasn't legal. That memo is what Sessions rescinded Thursday.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," Sessions said in a statement. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

It's still too early to predict the practical impact of the announcement on the industry, said Ames Grawert, an attorney in the Brennan Center's Justice Program, but "this is going to have a significant chilling effect," he ventured. "These businesses have always operated with uncertainty, rescinding this policy will make that worse. This could stop the California market from ever getting off the ground, and the referendum won't have the effect that California voters indicated they wanted," Grawert said.

Some pot companies had already lost 30 percent or more of their stock value hours after the announcement was made, according to New Frontier Data. Overall, publicly traded cannabis companies were down about 15 percent since noon on Thursday.

The announcement will likely lead to a hodgepodge of enforcement procedures across the country; some U.S. attorneys could choose to devote significant resources to a crackdown, while others may decide they have different priorities. But Sessions has a strong hand in deciding who is named to those jobs (subject to Senate confirmation), and he has likely assembled a team of federal prosecutors whose views align with his in states where marijuana has been legalized, noted Grawert.

Just on Wednesday, Sessions announced the appointment of 17 interim U.S. attorneys, including in districts in Nevada, California and Washington - all states where recreational pot is legal.

"I don't think that's coincidental," Grawert said, adding that Sessions has made cryptic comments on marijuana policies for months, and it's likely Sessions wanted to make the announcement before the potentially huge California market could get off the ground.

a close up of a map: Map of marijuana laws. Stateline 2018 © Staff/TNS/TNS Map of marijuana laws. Stateline 2018

Jonathan Blanks, a research associate in Cato's Project on Criminal Justice, said the real threat right now is to dispensaries of recreational pot. U.S. attorneys are unlikely to target users simply for possession, he said, and medical marijuana dispensaries aren't at the top of the list.

"The problem with these recreational dispensaries is they've had to register and show compliance, so they've provided evidence that they have committed a federal crime," Blanks said.

House Democratic leader Nancy Pelosi of California quickly condemned the attorney general's action, saying in a statement that it "bulldozes over the will of the American people and insults the democratic process."

"Democrats urge Attorney General Sessions to begin the New Year with a commitment to prosecute the real crimes devastating our nation, not to waste precious time and resources waging a pointless, unjust war against innocent Americans," Pelosi said.

Indeed, public support for the legalization of marijuana is at record highs, with 64 percent saying they believe it should be legal in an October Gallup poll. As of January 2018, recreational marijuana is legal in Alaska, California, Colorado, the District of Columbia, Maine, Nevada, Oregon and Washington state. It will become legal in Massachusetts in July. Medical marijuana is legal in 29 states and D.C.

Federal penalties for simple possession of marijuana include jail time of not more than one year and up to $1,000 in fines. Possession of 100 or more cannabis plants with intent to distribute brings a mandatory minimum sentence of five years in prison, while 1,000 or more plants or 1,000 kilograms of pot triggers a mandatory minimum of 10 years in prison.

"This is part of Sessions' ongoing campaign to implement archaic, tough-on-crime policies that don't play out in reality," said Inimai M. Chettiar, the Director of the Brennan Center's Justice Program. "And by focusing resources on smaller crimes like possession, he's actually jeopardizing public safety."

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