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Will Jeff Sessions make states' marijuana laws go up in smoke?

Is marijuana really legal? ASU Law Professor Jessica Berch explains why marijuana is still illegal despite state laws

Professor Jessica Berch.

February 05, 2018

Under federal law, marijuana is classified as a Schedule I drug — making it unlawful to manufacture, transport or even possess the drug. Despite the federal law, in 1996 California became the first state to legalize marijuana for medical use and in 2012, Colorado and Washington became the first states to legalize it for recreational use.

As of January 2018, thirty states and the District of Columbia have legalized marijuana for medical use, and eight of those states and D.C. have legalized marijuana for recreational use.

So is marijuana really legal?

ASU Now spoke to Professor Jessica Berch at the Sandra Day O’Connor College of Law, whose expertise is federalism and civil procedures — what happens when state and federal laws intersect. She explained the current federal law and what could happen if a person is in possession of marijuana in a state which has decriminalized the drug.

Question: Can you explain why it’s possible for marijuana to be legal in a state while still being illegal under federal law?

Answer: This is an uncomfortable area of the law right now. Under Article VI of the Constitution, federal laws are supreme. Whatever the merits of legalization as social policy, the legal problem remains: Federal law makes growing, selling and possessing marijuana illegal.

For the past several years, the federal government has chosen generally not to enforce the federal criminal prohibitions. Once the federal government changes its position and enforces its marijuana laws, the fact that a state has legalized marijuana does not provide a defense.

Q: What are the legal ramifications as the law currently stands?

A: Under federal law, first time possession of marijuana is a misdemeanor criminal offense; a person found guilty may face a term of imprisonment of not more than one year, be fined not less than $1,000, or both. The penalties only increase from there.

Despite these penalties, for at least two reasons, state legalization has flourished.

First, states — not the federal government — prosecute the vast majority of drug cases and, obviously, the states that have legalized marijuana will not prosecute. Second, President Obama’s administration issued memoranda essentially taking a hands-off approach to federal enforcement.

For example, in the Cole Memorandum of 2013, Deputy Attorney General James Cole noted eight priorities for federal enforcement, such as preventing the distribution of marijuana to minors. At that time, to avoid federal prosecution, marijuana dispensaries and users simply had to follow the guidelines.

Q: How is the current administration trying to change these laws and what would this mean?

A: On Jan. 4, 2018, Attorney General Jeff Sessions issued a memorandum repealing the previous memoranda relating to marijuana enforcement and reiterating that marijuana growth, distribution and possession are illegal under federal law, and federal prosecutors should weigh “all relevant considerations” in determining whether to file federal drug charges.

Some foresee that there may be an uptick in federal prosecutions, including a return of the high-profile raids on marijuana dispensaries that occurred during the Bush administration. 

Q: How will the changes be implemented? Will there be raids, people getting arrested, etc.?

A: Sessions’ memo states that federal prosecutors may choose to prosecute more marijuana crimes, but they are not required to do so. U.S. Attorneys should base their potential prosecutions on all relevant considerations, including whatever other (more serious) crimes are being investigated by the office, as well as time, resource and money constraints.

In the wake of the Sessions Memo, Colorado’s U.S. Attorney, Bob Troyer, said that his office will not change its approach to marijuana prosecutions, despite the change in federal guidance. Other federal prosecutors may follow Mr. Troyer’s lead, focusing their limited resources on crimes other than marijuana possession and sale. Only time will tell whether Sessions’ memo will change the status quo.