A former Massachusetts US attorney said Tuesday that he doubted that federal prosecutors will launch a major crackdown on the state’s newly legalized marijuana industry, but he didn’t rule out some prosecutions.
“I don’t believe there will be a change in federal priorities or the use of federal resources,” said former US attorney Donald K. Stern.
If it comes to a “state-regulated, lawfully operating pot dispensary operating under strict regulation” by the state, Stern said, “I don’t think that’s going to be a federal case.”
If it was, he said, it would be “a squandering of precious federal resources.”
He said it appeared that Attorney General Jeff Sessions “wanted to draw a line in the sand to let the industry know that they will continue to be at risk as long as he is attorney general.”
“It creates a lot of ambiguity and casts a cloud over what seems to be a growing industry,” said Stern, who is now managing director of a firm that provides ethics and compliance advice to companies.
Stern suggested that inhibiting the growth of the industry might have been Sessions’ goal last week when he rescinded the Obama-era guidelines that limited federal prosecution of dispensaries, banks, and other industry participants in states where marijuana has been legalized.
Stern didn’t rule out, however, that Massachusetts US Attorney Andrew Lelling would prosecute some marijuana cases, noting that Lelling’s own statement Monday, which caused howls of protest from advocates and politicians, didn’t take such cases off the table.
Brian Kelly, a former assistant US attorney who is now a partner at a major law firm, said, “Ultimately, we’ll see” what federal prosecutors do.
“I suspect they’ll bring one or two prosecutions to make the point the federal laws are still relevant and need to be complied with,” he said.
“I think it’s a serious risk for any one contemplating getting into the business because it’s a clear violation of the federal laws and it appears the federal authorities intend to enforce the law,” he said.
Timothy M. Burke, a former Suffolk County prosecutor who is now in private practice, said, “Clearly, if there’s a change in the direction and potential for prosecution, I believe any large-scale producer or distributor has to be concerned that they’re doing so at their own risk.”
Hilary Bricken, a business and regulatory attorney who has focused on cannabis-related work since 2010 and has done work in Washington, California, and Florida, said, “Everybody is on pins and needles” because US attorneys in different areas can have different agendas.
“Certain US prosecutors would be more than happy to make an example out of cannabis operators,” she said.
Under the Obama-era guidelines, she said, “We had order. We had reliable enforcement standards.”
Now, she said, “Any priority can take center stage. That’s when you get selective and varied enforcement.”
Mark A.R. Kleiman, a professor at New York University who has studied marijuana legalization since 1979, said he didn’t think Sessions’ move to rescind the guidelines would have much of an effect, “which is not to say a couple of US attorneys aren’t going to go after somebody” somewhere in the United States.
Kleiman noted that Sessions could have simply ordered US attorneys to prosecute cases, rather than rescind the guidelines.
“I think it’s mostly bluster,” said Kleiman. He also said the White House hadn’t given its full support to Sessions.
“They’re going to read the same polls I read. Cannabis is a lot more popular than [President] Donald Trump,” he said.
He also noted that US attorneys often harbor political ambitions and are concerned about their own popularity so that might deter them from launching prosecutions.
“It’s a $40 billion market. We’re tired of mass incarceration. We have limited budgets. We have an opioid crisis. When you think about the nuts and bolts of actually enforcing the cannabis laws, it’s not feasible,” he said. “I actually think cannabis prohibition is dead. When Congress decides to bury it is the question.”
“The major impact of the announcement will be to get millennial voters to the polls in November,” he said.John R. Ellement and Curt Woodward of the Globe staff contributed to this report.