Despite the support for the legalization of recreational marijuana in Massachusetts, Attorney General Jeff Sessions sent out a federal memo this month that makes the future of cannabis in Massachusetts even more unsure.
According to a Gallup poll from 2017, 64 percent of Americans support marijuana legalization, which is the highest level of public support they have found in nearly a half decade. Despite this wide public support and the fact that eight states plus Washington D.C. have legalized small amounts of marijuana for adult use recreationally, on January 4 Sessions’ office released a memo reiterating that under federal law “the cultivation, distribution, and possession of marijuana” is generally prohibited and that there are “significant penalties” for these crimes established.
The memo also said that the Department of Justice (DOJ) will be rescinding previous nationwide guidance, including guidance implemented by then-Deputy Attorney General James M. Cole under President Barack Obama, around marijuana enforcement. The so-called Cole Memo encouraged federal prosecutors to focus on certain target areas as states enacted legalization laws, including distribution to minors and driving under the influence.
With these guidelines removed, the growing Massachusetts pot industry has been thrown into uncertainty. Things didn’t get any clearer when Massachusetts U.S. Attorney Andrew Lelling responded to the memo with a comment of his own last week stating that, “Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana. As a law enforcement officer in the Executive Branch, it is my sworn responsibility to enforce that law.”
Lelling’s comments are in opposition to many notable Massachusetts politicians who have spoken up in the last few weeks to oppose Sessions’ decision, including Republican Governor Charlie Baker and Attorney General Maura Healey who both opposed the legalization of recreational marijuana in 2016.
“Conflicting state and federal legislation is nothing new in the marijuana industry and continues to be a risk factor for licensed marijuana businesses,” said Karima Rizk, who hopes to open a cannabis cafe in Easthampton. “The rescission of the Cole Memo is incongruent with the overwhelming U.S. public opinion in favor of marijuana legalization and the existing laws of a majority of U.S. states.”
Mike Cutler, a Northampton attorney at EvansCutler Attorneys who served on the drafting committee for the ballot question that ultimately legalized recreational marijuana, explained that unless Congress chooses to change the law and restrain the DOJ, Massachusetts marijuana supporters will have to wait and see if Lelling changes his tune.
“Will Congress act to change the law, or will Lelling support a policy that has made the mature reform states healthier, safer, and wealthier?” asked Cutler.
Cutler explained that the drama could also continue this week. The Rohrabacher-Farr Amendment (also known as the Rohrabacher-Blumenauer Amendment) prohibits the DOJ from using federal money to interfere with state medical cannabis laws. The amendment needs to be renewed each fiscal year and the federal spending bill that would include it is due to be passed or put off this Friday. If the Amendment is left out Sessions and the DOJ could also go after medical cannabis businesses.
Joining Massachusetts politicians in speaking out against Sessions are the Massachusetts State Police and many local police departments, including the Boston Police Department. Public Safety Secretary Daniel Bennett, who oversees the state police, told the Boston Herald last week that they intend to enforce state law, “voted on by the people of Massachusetts.” Northampton Chief of Police Jody Kasper said her department is keeping an eye on the situation.
“The statements that were made last week haven’t had any impact on our daily operations at this time,” she said.
Even with this support, the blossoming legal Massachusetts marijuana industry is being affected by all of this uncertainty. Cutler said anecdotally that cash management services have been removed from local businesses and that investments in new businesses have slowed.
“Last week, a number of Massachusetts medical marijuana dispensaries lost the ability to take patients’ debit card payments,” Rizk said. “Businesses and consumers are forced to carry even larger sums of cash and become targets for armed robbery. This unacceptable and we will continue to advocate for safe, legalized access to recreational adult-use marijuana in Massachusetts.”
