The Biden Administration’s Expected Criminal Enforcement Stance on Marijuana

February 1, 2021 | Geoffrey R. Kaiser | Compliance, Investigations & White Collar | Cannabis

As a candidate running for the office he now holds, President Biden advocated decriminalizing the use of marijuana, automatically expunging all prior marijuana use convictions, legalizing marijuana for medical purposes and rescheduling marijuana from Schedule I to Schedule II in order to permit scientific research into its effects, while leaving decisions regarding legalization of marijuana for recreational use up to the States.  Those policy prescriptions provide some glimpse into the Biden administration’s likely enforcement posture when it comes to marijuana, and it should be worlds apart from the approach of law enforcement during four years under the Trump administration.

The Obama Administration

Enforcement policy shifted dramatically between the Obama and Trump administrations. During the Obama years, DOJ published guidance containing recommendations for when the federal government would, and would not, enforce the CSA and other federal laws against medical marijuana business activities that were being carried out in compliance with state laws authorizing such activities.  On October 19, 2009, DOJ Deputy Attorney General David W. Ogden issued a memorandum for selected United States Attorneys entitled “Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana” (“Ogden Memo”).  In that memo, which was intended as a guide to the exercise of investigative and prosecutorial discretion, DOJ reaffirmed its commitment to enforcing the CSA in all States.  While noting that the Department’s resources should be directed toward disruption of illegal drug manufacturing and trafficking networks, the memo also stated that prosecutors “should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana,” concluding such behavior “is unlikely to be an efficient use of limited federal resources.”   The memo did state, however, that “prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department.”  In order to guide prosecutorial discretion, the memo listed characteristics that, when present, are indicative of conduct that “will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking of potential federal interest,” including:

  • Unlawful possession or unlawful use of firearms;
  • Violence;
  • Sales to minors;
  • Financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
  • Amounts of marijuana inconsistent with purported compliance with state or local law;
  • Illegal possession or sale of other controlled substances; or
  • Ties to other criminal enterprises.

On June 29, 2011, DOJ Deputy Attorney General James M. Cole issued a second memorandum entitled “Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use” (“Cole Memo I”).  Cole Memo I reaffirmed the continuing validity of the Ogden memo and stressed that its recommendations to direct enforcement efforts away from individuals with serious illnesses and their caregivers did not apply to “commercial operations cultivating, selling or distributing marijuana.”  Cole Memo I noted that since the Ogden Memo, there had been an “increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes” and that the Ogden Memo “was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law.”  Cole Memo I concluded that such operations were subject to prosecution, and that those engaging in financial transactions involving the proceeds of such activities “may also be in violation of federal money laundering statutes and other federal financial laws.”

Subsequently, on August 29, 2013, Deputy Attorney General Cole issued another memo entitled “Guidance Regarding Marijuana Enforcement” (“Cole Memo II”).  Cole Memo II “applies to all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions, concerning marijuana in all states.”  To guide prosecutors, that memo restated the federal priorities in marijuana enforcement as follows:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

Cole Memo II stated that outside these enforcement priorities, the federal government has traditionally relied on state and local law enforcement agencies to address marijuana activity, and that it would continue to do so, provided “states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.” Cole Memo II also revisited the distinction made in previous guidance between seriously ill patients and their caregivers, on the one hand, and “large-scale, for-profit commercial enterprises, on the other.”  The memo acknowledged that this prior distinction was based “on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above.”  Cole Memo II, however, backed away from this distinction, noting that a “strong and effective” state regulatory system may mitigate the threat that an operation’s size might otherwise pose to federal interests, and that prosecutors therefore “should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities . . . .”

On February 14, 2014, Deputy Attorney General James M. Cole issued a third memo entitled “Guidance Regarding Marijuana Related Financial Crimes” (“Cole Memo III”).  Cole Memo III reaffirmed the August 29, 2013 guidance that “whether marijuana-related conduct implicates one or more” federal enforcement priorities “should be the primary question in considering prosecution under the CSA” and stated that the guidance “applies to all Department marijuana enforcement nationwide.”

Cole Memo III further reviewed various financial crimes statutes, including the money laundering statutes.  The memo concluded that while transacting in the proceeds of a marijuana business could be prosecuted under the money laundering statutes, any decision to do so should be based on the same eight federal enforcement priorities discussed in Cole Memo II, and if an “individual offers services to a marijuana-related business whose activities do not implicate any of the eight priority factors, prosecution for these offenses may not be appropriate.”

The Trump Administration

The Trump Administration, however, rescinded all of the Obama-era guidance discussed above.  On January 4, 2018, the Justice Department put out a press release “announcing a return to the rule of law and the rescission of previous guidance documents” relating to marijuana enforcement.  A memo issued the same date by then-Attorney General Jeff Sessions stated:

In the Controlled Substances Act, Congress has generally prohibited the cultivation, distribution, and possession of marijuana, 21 U.S.C. § 801 et seq.  It has established significant penalties for these crimes. 21 U.S.C. § 841 et seq.  These activities also may serve as the basis for other crimes such as those prohibited by the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act. 18 U.S.C. §§ 1956-57, 1960; 31 U.S.C. § 5318.  These statutes reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.

The memo referred to “well-established principles that govern all federal prosecutions” in “deciding which cases to prosecute under these laws” that take into account “federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”  In light of these existing DOJ prosecution principles, the Sessions Memo declared that “previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.”

The Biden Administration

In light of the current President’s declared policy agenda when it comes to marijuana, including decriminalization, expunging marijuana use convictions and rescheduling marijuana to Schedule II, not to mention his role as Vice President in the Obama administration that was responsible for the previous enforcement guidance, there is every reason to believe that a Biden-constituted Department of Justice will not only reinstate that guidance, but also craft new guidance that articulates even more relaxed enforcement standards.  This is particularly true given the clear trend among States toward legalization for medical and/or recreational use.  President Biden has already declared his preference for allowing individual States to make these determinations and, therefore, he is highly unlikely to support federal enforcement policies that could conflict with or serve to undermine State enforcement priorities in the field.  However, as this is still an evolving area of the law, and marijuana for now remains a Schedule I controlled substance deemed by the federal government to have a high potential for abuse without any currently accepted medical use, it is important to temper enthusiasm for this expected new approach with the realities of the current regulatory environment, and to match rather than overtake anticipated legal developments in the months and years ahead.

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