Despite President Trump’s campaign promise to leave marijuana “up to the states,” Attorney General Jeff Sessions has decided to do the opposite. In a memo released this week, the Department of Justice rescinded its previous policy of non-interference with states that legalized cannabis sales, opening the door for prosecutors to pursue marijuana businesses even when they are complying with state laws.
Sessions’s position deviates, not only from that of his boss, but with public opinion, which has shifted dramatically in recent decades. According to recent polls, as many as 88 percent of Americans say they now approve of legalizing medical marijuana. While only 49 percent support recreational pot, many more—71 percent—also don’t want the feds to interfere with states that choose to legalize this form of marijuana use.
Since California became the first state to authorize medical marijuana sales in 1996, voters throughout the nation have increasingly relaxed their pot laws, with medical marijuana now legal in 29 states and recreational legal in eight states and the District of Columbia. Despite this seismic shift in attitudes and state laws, however, the federal law hasn’t changed: marijuana is still a Schedule I controlled substance, banned alongside heroin, LSD, and ecstasy. In an attempt to address the confusion this incongruity between federal and state laws caused for federal prosecutors, Obama Deputy Attorney General Jim Cole issued a memo in 2013 instructing prosecutors not to take legal action against marijuana businesses complying with their respective state’s laws. By deferring to state authorities on marijuana, the Cole Memo, as it is now known, acknowledged Americans’ changing priorities. It also preserved state legislatures’ authority to make their own decisions about what laws best served the interests of their state and constituents.
As Cole later described it, it was just the smart thing to do. While DOJ analysts told him he could legally intervene and stop the states from legalizing marijuana, “what’s the point of that” he said in a 2016 interview. “All we’re going to do is cut off our nose to spite our face and help the drug cartels make lots of money.” This proved a wise decision.
In the short time since it has become legal, the cannabis industry created as many as 230,000 jobs and generates hundreds of millions in tax revenue for the states each year. Furthermore, offering consumers legal sources of marijuana has stymied foreign drug cartels, decreased violent crime, and appears to reduce opioid overdoses and deaths. These are, perhaps, among the reasons why two-thirds of those in law enforcement support marijuana legalization.
Jeff Sessions may not care if overturning the previous DOJ stance is smart or even whether it is line with the views of his boss or the principles of his party. Yet, one can’t really blame Sessions for the situation in which we now find ourselves: federal law prohibits marijuana sales, and it’s his job to enforce federal law. The fault really rests with Congress. It was Congress that chose to enact a prohibition on marijuana in the first place and Congress that failed for years to act on any of the dozens of bills to amend or repeal it. Thus, it is Congress’s responsibility to fix this by finally updating federal drug laws in a way that reflects America’s changing values and priorities. The public has an even bigger obligation. It is up to us to remember this experience, to take note of how slow Congress is to respond to changing attitudes, and to be much more cautious the next time they try to take control over the decisions best left to the states and individuals.