Opinion | Donald K. Stern

Sessions muddied waters of legalized marijuana, and the US attorney for Mass. isn’t helping

FILE - In this Jan. 6, 2018, file photo, an employee stocks cannabis at a store shortly before its first day of recreational marijuana sales in San Francisco. California's legal pot market is being ushered in with a sprawling, untested system to transport buds and products around the state. The so-called marijuana distributor is a kind of skeleton connecting the state's emerging industry of growers, sellers and manufacturers. (AP Photo/Noah Berger, File)
Noah Berger/Associated Press
An employee stocks cannabis at a store in San Francisco, shortly before its first day of recreational marijuana sales.

Attorney General Jeff Sessions announced last week that federal laws prohibiting marijuana trump any state laws to the contrary. US attorneys have been directed to consider whether to prosecute particular cases — even if the defendant is adhering to all the rules and regulations imposed by a state where marijuana is legal, including Massachusetts. This week Andrew Lelling, the new US attorney for Massachusetts, stated that he would not rule out criminal prosecutions of participants in the state-regulated marijuana business. This means that any licensed pot dispensary in Massachusetts can be criminally prosecuted, as can the customers, lawful suppliers, employees, and banks. That would be a mistake.

But consider what the attorney general said and didn’t say. He did not direct US attorneys to prosecute everyone who follows state law that conflicts with federal statutes. He could have directed prosecutors to bring such a case against a state-licensed shop, but he clearly did not want to take this hardline stand. He wants it both ways. Take a “principled” view of things but leave it up to each US attorney to decide particular cases.

This will likely result in no increase in prosecutions. Those who are state licensed, with strict regulation and oversight, probably will continue to operate. Those who harvest, sell, or buy their pot on the illegal market are at risk, as they were before. It’s doubtful that federal prosecutors will suddenly go after low-level marijuana dealers and users; federal prosecutors will likely respect state laws and not prosecute licensed dispensaries.


If that’s the case, why did the attorney general issue his statement? Based on Sessions’ past comments, it’s probably because he not only views marijuana as a gateway drug but also feels that he (or any prosecutor) cannot unilaterally change a law that Congress has passed and carve out certain conduct as immune from federal prosecution. However, the Obama policy that Sessions reversed did not provide blanket protection to anyone. It simply noted that federal interests and priorities are usually not threatened in those states that have implemented a rigorous system for the regulation of marijuana. Prosecutors always make such a practical assessment of various laws and conduct, taking into account priorities, resources, the federal interest involved, and the likelihood of obtaining a conviction. Lelling said as much in his statement: “I must proceed on a case-by-case basis assessing each matter . . . and deciding whether to use limited federal resources to pursue it.” But this statement failed to explain how he would do so here, and afforded no deference to state law.

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Lelling should have gone further, exercised his discretion, and made clear that participants in the state-authorized industry will not be prosecuted, absent special circumstances. Instead, he opened up the possibility of criminally prosecuting those who cultivate, sell, and possess marijuana. He will unlikely do so. That would be a waste of “limited federal resources” and a departure from conservative norms of federalism. A more candid and straightforward statement would have simply said that the default policy is that if you follow state law we will leave you alone, but if you stray outside the lines, you are at risk.

The failure to articulate a plain statement of intent leaves the new Massachusetts lawful marijuana industry and the efforts to carefully regulate it to be in limbo, at least until federal priorities are made clearer. Perhaps, this was Sessions’ real goal: to take a stand (sort of) and chill the entire burgeoning industry.

Donald K. Stern is a former US attorney in Massachusetts.