SACRAMENTO -- The US Justice Department announced Thursday that Attorney General Jeff Sessions has rescinded the Obama-era marijuana prosecution guidelines known as the “Cole Memo.”
Sessions has given federal prosecutors authority to decide how to prosecute marijuana offenses. Recreational marijuana became legal in California January 1, but remains illegal federally.
The 2013 Cole memo outlined various provisions for marijuana enforcement such as preventing the sale of marijuana to minors and preventing marijuana revenue from going to criminal enterprises, and preventing marijuana related violence or weapons use. The memo also said in states that legalized marijuana in some way, enforcement of state and local marijuana policy would largely be left up to local and state governments -- essentially declining to enforce federal marijuana law on a local level.
Former federal defense attorney Mark Reichel says the move could be problematic for people in the cannabis business because he says "there's no defense".
He says people charged with federal marijuana crimes only have two chances of avoiding conviction.
"Number one -- is it marijuana? And number two -- did you possess or sell it?" Reichel said. "That's it. There’s no third option."
However, he says it is too early for business owners to panic.
Reichel also offered advice to Californians in the pot industry.
"Number one, definitely follow California law to the letter of the law, number one. And number two, be prepared to answer and explain to the federal government why you shouldn’t be prosecuted criminally, what good you’re serving, how you’re scrupulously following California law, and how you’re not in it to skirt the law," he told FOX40.
Lynette Davies remembers all to well the period between 2005 and 2011 when it wasn't uncommon for federal prosecutors to crack down on marijuana businesses in the Sacramento area.
"We had to have literally a list of things in case your were arrested you would have to do," said Davies.
Davies has owned Canna Care for more than a decade and survived a period when federal raids sent her friends and colleagues to jail.
As an Obamare era directive largely left marijuana enforcement to state discretion and California moved towards complete legalization of marijuana Lynette thought those days of fearing the federal government would kick down her door were over.
"It’s scary if they would raid places that sell medicine what will they do now that there's adult use?" Davies said.
Since the DOJ decision places the prosecutorial discretion with federal prosecutors, the fate of Sacramento are cannabis prosecution will largely be in the hands of newly-appointed US attorney for the Eastern District McGregor Scott. When asked about Scott's position in marijuana enforcement Lauren Horwood, a spokesperson for Scott's office issued this statement:
"The cultivation, distribution, and possession of marijuana has long been and remains a violation of federal law for all purposes. We will evaluate violations of those laws in accordance with our district’s federal law enforcement priorities and resources. We will continue our long-standing efforts to assess and address the unique threats and challenges facing our district together with our state, local and federal law enforcement partners."
"It’s definitely wait and see, though I imagine most people are going to gamble and keep going forward," said Reichel.