Retail cannabis industries across the country are reeling after United States Attorney General Jeff Sessions issued a memo rescinding the Cole Memorandum, a 2013 policy that offered protection from federal prosecution for the cultivation, distribution and possession of pot in states where it is legal. In Colorado, the first state to authorize the legal sale of retail cannabis, the response has been quick...and, in many cases, furious.
Governor John Hickenlooper says that Sessions's memo will not change his responsibility to carry out the will of the people, who voted to legalize recreational cannabis in 2012. “Thirty states comprising more than two-thirds of the American people have legalized marijuana in some form. The Cole memo got it right and was foundational in guiding states’ efforts to regulate the production and distribution of marijuana," Hickenlooper said in a statement. "Colorado has created a comprehensive regulatory system committed to supporting the will of our voters. We constantly evaluate and seek to strengthen our approach to regulation and enforcement. Our focus will continue to be the public health and public safety of our citizens. We are expanding efforts to eliminate the black market and keep marijuana out of the hands of minors and criminals. Today’s decision does not alter the strength of our resolve in those areas, nor does it change my constitutional responsibilities.”
The January 4 Sessions memo rescinds federal cannabis guidelines dating back to 2009, including not just the Cole memo but the Ogden memo, which laid out a set of federal protections for medical marijuana patients and caregivers. It does not affect the Rohrabacher-Farr Amendment, however, which passed Congress this past July and prohibits federal agencies from using funds to persecute state-compliant medical marijuana businesses, caregivers and patients until January 19, when it will be revisited by a House-Senate conference committee.
Colorado senators Cory Gardner and Michael Bennet both criticized Sessions for the move, as did most of the state's representatives. But the most important reaction to the memo will be that of Robert Troyer, the U.S. Attorney for the District of Colorado — and the man who decides how to enforce federal cannabis laws in this state. Troyer issued a statement shortly after the memo was announced:
“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions," he said. "The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state. We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”
What constitutes a safety threat now that Sessions has rescinded the Cole memo is unclear; Troyer's office isn't expanding on that statement for now. But plenty of others have weighed in.
During a press conference this afternoon, Colorado Attorney General Cynthia Coffman said that her department had no warning that Sessions's memo was coming, and added that she will continue to defend Colorado laws, including those legalizing recreational marijuana. Coffman has been in contact with Troyer since she read the memo, and added that she believes his office will continue taking much the same approach in regard to federal and state law enforcement on the cannabis industry. Going forward, she said, she will continue to meet with industry working groups as her office learns more about future federal enforcement.
"This does not undo all the hard work people have done to protect public safety and public health here in Colorado," she said. "And I think we all have to take a deep breath and look at what the guidance is, and let us have some conversations among law enforcement officials about priorities — but I do not see a major shift in Colorado in what has been happening in terms of regulation and enforcement of marijuana."
Attorney Brian Vicente, who co-authored the legislation legalizing adult-use cannabis in Colorado and represents dozens of clients in the industry, says he believes Troyer will stick with the status quo based on past actions and remarks, but adds that he's advising his clients to work extra hard at keeping their noses clean.
"You need to double down on compliance, be a good neighbor, pay your taxes, and that should keep you out of the crosshairs with federal government," he says. "This is something folks like myself and clients have dealt with almost daily since Trump appointed Jeff Sessions. There's been this tension and concern that he was going to do something wildly out of touch — and this morning, he did that."
Colorado is in a better spot than other parts of the country with U.S. attorneys who have been less welcoming to cannabis, Vicente adds. "If I were in northern California or eastern Washington, I'd be more worried," he says. "Colorado, in many ways, has been a model for other states. We have the most history in regulating marijuana, so that's influenced even skeptical politicians."
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