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Legalized Marijuana - U.S. Attorney General Memo Raises Uncertainty on Marijuana Federal Enforcement in States Where Legalized

Uncertainty Continues to Mount on Marijuana Federal Enforcement in States Where Legalized

U.S. Attorney General Jeff Sessions issued a January 4, 2018, memo to all United States Attorneys that the Trump administration is reversing an Obama-era policy that gave states some comfort that federal prosecution will not interfere in states that legalize marijuana activity.

While the memo does not state that the U.S. Attorneys are to prosecute such activity, the AG does direct prosecutors to consider details like the seriousness of the crime, its impact on the community and how a prosecution will deter future crime before deciding to prosecute a marijuana offense. The new guidance puts the marijuana industry in flux because it relies heavily on the discretion of U.S. attorneys.

In a Department of Justice news release, the DOJ reiterated that Congress has generally prohibited the "cultivation, distribution and possession of marijuana" as a Schedule I drug since 1970 under the Controlled Substances Act.

Sessions' move follows the opening of California's legal recreation market on Jan. 1.

This action has triggered harsh reaction from various states including Colorado, whose Senator Gardner threatened to hold up any DOJ nominee until the AG rescinded his memo, and California, whose insurance commissioner issued a statement of condemnation in the "strongest possible terms."

At the same time, as part of the current December budget deal, Congress renewed a provision that prevents the Justice Department from using federal dollars for prosecutions that conflict with state medical marijuana laws. Known as the Rohrabacher-Blumenauer (Farr) amendment,  this prohibition was extended to January 19, at which time Congress will decide whether to reconsider that position give Session's stated position.

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