A big question entrepreneurs will face in states like Massachusetts is whether the federal government will crack down on state-sanctioned marijuana businesses, which remain illegal under federal law.
At a gathering of policy makers from across the country on Monday, a lawmaker from Washington state, a Vanderbilt University law professor, and a Brookings Institute fellow all suggested that pot sellers can breathe easy.
The three experts, who spoke on a panel held in Boston by the National Conference of State Legislatures, each said that tight funding and other pressures should keep federal law enforcement at bay.
“Trying to roll it back and trying to go back to the old war on drugs — the terribly failed system — they will do it at their own peril,” Washington state Representative Roger Goodman, a Democrat who lives near Seattle, told the gathering.
Vanderbilt Law School professor Robert Mikos said a federal appeals court has ruled that current appropriations law bars the Department of Justice from prosecuting medical marijuana dispensaries that comply with local laws.
In November, Massachusetts voters legalized adult possession and cultivation of marijuana for recreational use, and this summer state lawmakers overhauled the voter-approved measure for regulating retail sales.
Medical marijuana dispensaries were legalized in 2012 and are up and running in the Bay State. Top lawmakers anticipate the first retail pot shop will open next summer.
In a 1970 federal statute, marijuana is classified as among the most dangerous drugs, and federal officials patrolling federal property, including military installations, and offshore areas intend to continue enforcing the prohibition.
The question for Massachusetts and other states that have legalized retail sales is whether federal agents will go after marijuana businesses.
Attorney General Jeff Sessions has asked Congress to give the Department of Justice authorization to prosecute medical marijuana dispensaries, according to The Washington Post, which reported that the Obama administration had also sought to “undermine” the ban on prosecution.
According to the Associated Press, a task force that Sessions assembled this year to review marijuana and other criminal policies came up with a report that “largely reiterates the current Justice Department policy on marijuana.”
In a speech in Dallas in July, Sessions suggested that society has been too lax in its approach to drug abuse, according to his prepared remarks.
“Now, some people today say that the solution to the problem of drug abuse is to be more accepting of the problem of drug abuse. They say marijuana use can prevent addiction. They say the answer is only treatment. They say don’t talk about enforcement. To me, that just doesn’t make any sense,” Sessions said. “In fact, I would argue that one reason that we are in such a crisis right now is that we have subscribed to this mistaken idea that drug abuse is no big deal.”
Mikos advised state lawmakers that they could establish an indemnification fund to provide legal defenses if federal prosecutors decide to bring cases against the marijuana industry. But Mikos doesn’t think there is much of a risk for the regulated marijuana industry.
“DOJ for one thing doesn’t have the resources that would be necessary to make a really effective crackdown,” Mikos said.
He said the US attorneys who will be appointed by President Trump are “much more in tune with local politics, and they’re much more leery about shooting themselves in the foot long-term by bringing a federal case.”
John Hudak of the Brookings Institute agreed that resources are scarce at the Justice Department, and said that cracking down on marijuana businesses would carry reputational risks for the attorney general.
“The worst embarrassment for Jeff Sessions would be to try to restart the war on drugs and fail miserably in enforcing it,” Hudak said.
A 2013 Justice Department guidance memo suggested that robust state regulation of marijuana businesses could accomplish the federal goals of preventing the drug from falling into the hands of minors, cutting off funding to drug gangs, and reducing gun violence — without additional federal enforcement.
Goodman, who grew up in Providence and represents clients in the marijuana business as a lawyer, said federal officials have indicated that prosecuting marijuana dispensaries is not a priority.
“We’ve heard in private conversations that they have other priorities and they have limited resources, and they think that the current federal enforcement guidelines are very helpful,” Goodman said. “And so we’re encouraged that despite the public saber-rattling, that the federal government is going to be finding other enforcement priorities.”
Regarding his roles as a state lawmaker and a lawyer who represents marijuana businesses, Goodman said, “I take great pains to prevent even the perception of conflict of interest . . . I’ve voted for bills that were contrary to the interests of a number of my clients.”