Nearly a quarter of the American population live in states where marijuana is legalized in some way. In 2018, eight states will have decriminalized the recreational use of marijuana. Given the fact that 59 percent of Americans are for the legalization of marijuana, it is likely that other states will follow suit. Marijuana use on the federal level, however, remains a serious criminal offense. With the installation of Jeff Sessions – a notorious opponent of the legalization of the drug – as United States Attorney General, the future clash between federal and state laws seems imminent. Sessions has vowed that the “Department of Justice is committed to enforcing” the current federal ban on the possession, sale, and cultivation of marijuana, which he describes as “a dangerous drug.”
At the federal level, marijuana is in a league of its own, legally speaking. The drug is currently classified as Schedule I controlled substance. This means that it is illegal because it has “high abuse potential, no medical use, and severe safety concerns.” Other drugs that are classified as Schedule I substances include heroin, LSD, and cocaine. While marijuana is listed as a Schedule I drug along with these other substances it actually has its own schedule of criminal penalties. This means that the possession, sale, or cultivation of marijuana is punished differently than the possession, sale, or cultivation/manufacture of other Schedule I drugs.
When states began to legalize the recreational use of small amounts of marijuana the Obama administration issued what is known as the Cole Memorandum (“Cole”). With Cole, the federal government acknowledged that while marijuana was still illegal on a federal level, it would “not target individuals, growers, or sellers who comply fully with state regulations.” Instead, federal law enforcement officials would focus their attention on non-compliant users and the dangers associated with marijuana use. These include underage use, driving under the influence, smuggling, and “other adverse health consequences.” This essentially meant that residents of states where marijuana is legal could breathe a sigh of relief. If they followed state law they would not be targeted by the federal government for breaking federal drug laws.
This is incredibly important for recreational users, distributors, and growers in states where marijuana is legal. The federal criminal penalties associated with marijuana possession, sale, and cultivation can be severe. Possession charges range from a misdemeanor charge for first-time offenses to felony charges for second and subsequent offenses. Felony possession charges carry a mandatory minimum sentence of no less than 15 days to 90 days in jail and a maximum sentence of up to three years in prison. Federal charges for the sale and/or cultivation of marijuana are felonies and can be much more serious. If convicted, a person could face between five years and life in prison, depending on the specific circumstances of the incident. Implementing and following Cole allows individuals who abide by state legalization laws to (generally) avoid these serious and life-changing consequences.
With Jeff Sessions at the helm of the Department of Justice, however, the future of Cole is in jeopardy. Nothing in Cole prevents him from enforcing the prohibition on the use, sale, or cultivation of marijuana. He is legally permitted to go pursue federal criminal charges anyone who uses, sells, or grows marijuana – even if they adhere to the letter of the appropriate state law. The federal penalties associated with marijuana have once again become a reality. As criminal defense attorneys who routinely handle drug cases, we have a responsibility to be prepared to protect our clients from the potential state and federal consequences that may arise from marijuana use. It is important to stay abreast of any changes in the federal drugs laws and the federal government’s approach to the legalization of marijuana at the state level. For more information, visit https://kostlaw.com.