The Marijuana Memos: Department of Justice on Balancing Federal Interests, Limited Resources, and State Oversight

Photo of Jeff Sessions: Modified from POLITICS NEWS NATIONAL DESK Image

Written By: Tiffany Jones

Business Committee Chair, American Journal of Trial Advocacy

On January 4, 2018, United States Attorney General Jefferson B. Sessions, III (Sessions) issued a memorandum to “All United States Attorneys.”[1]  The subject of the one-page memorandum: Marijuana Enforcement.[2] In the memorandum’s three paragraphs, Sessions rescinded all previous guidance issued by the Department of Justice (referred to as “DOJ,” “Department,” or “Justice Department”) regarding Marijuana Enforcement.[3] Sessions described the “previous nationwide guidance specific to marijuana enforcement” as “unnecessary” and ordered its rescission “effective immediately.”[4] There are five memoranda explicitly cited as rescinded by the memoranda and two federal laws implicated: the Federal Controlled Substances Act (CSA)[5] and the Bank Secrecy Act (BSA).[6]

In his January 4, 2018 memorandum, Session explicitly listed the following Department memoranda to be rescinded immediately[7]:

  1. David W. Ogden, Deputy Att’y Gen., Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009).[8] (Ogden Memorandum)
  2. James M. Cole, Deputy Att’y Gen., Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011).[9] (2011 Cole Memorandum)
  3. James M. Cole, Deputy Att’y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29, 2013).[10] (2013 Cole Memorandum)
  4. James M. Cole, Deputy Att’y Gen., Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes (Feb. 14, 2014).[11] (2014 Cole Memorandum)
  5. Monty Wilkinson, Director of the Executive Office for U.S. Att’ys, Policy Statement Regarding Marijuana Issues in Indian Country (Oct. 28, 2014).[12] (2014 Wilkinson Memorandum)

The 2009 Ogden Memorandum

In the 2009 Ogden memorandum, United States Deputy Attorney General David W. Ogden (“Ogden”) offered “clarification and guidance” for federal prosecutors in states that had legalized medical marijuana on Department of Justice priorities regarding enforcement of federal laws that run contrary to state laws.[13]  Due to the extreme variance in state laws on marijuana, the Ogden Memorandum offered “uniform guidance . . . on core federal enforcement priorities.”[14] This guidance emphasized two main priorities of the Justice Department.[15]  First, the Ogden Memorandum emphasized the continued commitment of the Department “to the enforcement of the Controlled Substances Act in all States.”[16] Second, the Ogden memorandum introduced the Department’s commitment to “making efficient and rational use of its limited investigative and prosecutorial resources.”[17]

In emphasizing the Department’s commitment to the enforcement of the Controlled Substances Act, the Ogden Memorandum examined Congress’s intent behind the Controlled Substances Act and the priorities of the Department based on the needs of the United States.[18] Ogden recognized that “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.”[19] Ogden offered the example of the imperative nature of the Department’s “prosecut[ion] of significant marijuana traffickers” due to the fact that “marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.”[20]

Additionally, the Ogden Memorandum introduced an important tension to the enforcement of federal marijuana laws; “making efficient and rational use of [the Department’s] limited investigative and prosecutorial resources.”[21] Although Ogden explicitly recognized the broad authority and discretion “United States Attorneys are vested with” as “plenary,” Ogden asserted that United States Attorneys should exercise their authority “consistent with Department priorities and guidance.”[22]

Although Ogden emphasized that the “prosecution [and disruption] of significant traffickers of illegal drugs [and their manufacturing and trafficking networks], including marijuana . . . continue[d] to be a core priority” of the Justice Department.[23] However, he also stated prosecution of medical marijuana users “with cancer or other serious illnesses” or their caregivers whose use is “consistent with applicable state law” is not likely “to be an efficient use” of the Department’s resources.[24]

Although not an exhaustive list, the Ogden Memorandum offered the following examples of conduct that may not be in clear compliance with state law and may indicate illegal drug trafficking activity of potential federal interest:

[U]nlawful possession or unlawful use of firearms; violence; sales to minors; financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law; amounts of marijuana inconsistent with purported compliance with state or local law; illegal possession or sale of other controlled substances; or ties to other criminal enterprises.[25]

In the memorandum’s guidance, Ogden explicitly described that an entity’s claim of compliance to state or local law would not be deemed to deter the enforcement of the Department’s core enforcement priorities.[26] Moreover, due to the fact that states cannot “authorize the violation of federal law,” it was emphasized as unnecessary for federal prosecutors to establish that the individual or entity in question was not in compliance with state law.[27]

Moreover, the Ogden Memorandum reminds federal prosecutors that the “memorandum does not alter in any way the [DOJ’s] authority to enforce federal law” nor does it alter or change federal law.[28]   The memorandum merely offers guidance on federal resource allocation based on the identified federal priorities.[29] Finally, Ogden elaborates that each case must be considered for prosecution, “consistent with the [issued] guidance” on a “case-by-case” basis.[30]

The 2011 Cole Memorandum

In a 2011 memorandum, Deputy Attorney General James M. Cole (Cole), responded to inquiries on the continued accuracy of the standing the Department of Justice expressed in the 2009 Ogden Memorandum.[31] Cole explained that the Department’s stance remained the same.[32]  In the memorandum, Cole reiterated that the Department  “is tasked with enforcing existing federal criminal laws in all states, and enforcement of the [Controlled Substances Act] has long been and remains a core priority” yet the enforcement of the CSA on “individuals with cancer or other serious illnesses . . . or their caregivers” is “likely not an efficient use of federal resources.”[33]

The 2013 Cole Memorandum

In the 2013, Deputy Attorney General Cole offered the Cole Memorandum in response to states that had legalized recreational marijuana.[34] The 2013 Cole Memorandum effectively updated the Department’s guidance “concerning marijuana enforcement under the Controlled Substances Act” (“CSA”).[35] The update maintained that, consistent with Congress’s findings, marijuana is dangerous, and that the revenue that is generated by the market benefits “large-scale criminal enterprises, gangs, and cartels,” and therefore is a serious crime.[36] Cole also continued to emphasize the Department’s “commit[ment] to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way.”[37] The update, by this 2013 memorandum, offered clarification to guide the discretion of federal prosecutors in the form of eight core enforcement priorities of the Department regarding marijuana. Cole identified the following priorities as being of particular importance to the federal government and to be used to guide the enforcement of the CSA:[38]

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.[39]

Additionally, in this memorandum Cole addressed the historical role of the Department in conjunction with state agencies.  Historically, the role of the Department has not been to prosecute individuals who simply possess small amounts of marijuana deemed to be for personal use on private property.[40] Rather, the Department has traditionally left such enforcement up to states and local agencies.[41] Cole recognized that it is excessive and unnecessary for the Department to take on the state’s traditional role and therefore offered guidance for federal prosecutors’ discretion.

Further, Cole emphasized that this guidance of the eight core principles relied on the “expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.”[42] Moreover, Cole recognized that states that had implemented such systems allowed the federal government to effectively maintain the traditional balance between state and federal efforts regarding the enforcement of marijuana laws.[43]

Cole addressed the previous guidance which offered prosecutorial discretion for medical marijuana and primarily outlined the impracticality of the prosecution of individuals suffering from serious illness and their caregivers.  In his 2011 memorandum, Cole offered that in considering prosecution, “the size of a marijuana operation was a reasonable proxy for assessing” whether federal action was warranted.[44]  Alternatively, in this memo, Cole excluded “the size or commercial nature of a marijuana operation,” without more, as sufficient to warrant federal action.[45] However, the size or commercial nature of a marijuana operation could be considered as a relevant factor in “assessing the extent to which it undermines a particular federal enforcement priority.”[46] Cole concluded by stating that the “primary question in all cases – and . . . jurisdictions – should be whether the conduct at issues implicated one or more of the [eight] enforcement priorities.”[47]

The 2014 Cole Memorandum

In his 2014 memorandum, Deputy Attorney General James M. Cole (Cole) applied the rationale of his 2013 memorandum to the Bank Secrecy Act (“BSA”). Cole offered the guidance that “the eight enforcement priorities described in the [[2013 Cole Memorandum] guidance” should be applied to determine whether to bring charges for any of the offenses in regard to both the CSA and the BSA.[48]

In addition to the eight factors, the financial institution serving businesses involved in the marijuana industry were required to conduct due diligence of their customer’s business activities to ensure compliance with federal financial law.[49] It was also noted that lack of involvement in the eight priority factors may not be sufficient to avoid federal prosecution when a financial institution or individual offers services to marijuana-related businesses.[50] But rather, a financial institution that chose to serve marijuana-related businesses must additionally consider the sufficiency of the state or jurisdiction’s regulatory system, and actively “apply appropriate risk-based anti-money laundering policies, procedure, and controls sufficient to address the risks posed by these customers.”[51]

Finally, as in his previous memorandums, Cole again emphasized that the memorandum was “intended solely as a guide to the exercise of investigative and prosecutorial discretion.”[52]  Additionally, Cole repeated the imperative point that the “memorandum does not alter in any way the Department’s authority to enforce federal law.”[53]

The 2014 Wilkinson Memorandum

On October 24, 2014, Monty Wilkinson, the Director of the Executive Office for United States Attorneys, authored a memorandum that applied the eight priorities and rationale behind the 2013 and 2014 Cole Memoranda to “enforcement of the Controlled Substance Act (CSA) on tribal land.”[54]

What is the practical effect of the 2018 Sessions Memorandum?

The memoranda revoked by Sessions, in response to changes in state law, allocated that more policing and regulatory authority should remain with the state. The revoked guidance recognized that states that had enacted legislation legalizing some form of marijuana use served to protect the established federal interests. While the Department maintained the broad discretion to step in and enforce federal law, eight core priorities were offered as a litmus test of federal interests that would necessitate Department action.[55] This allocation served to establish the enforcement of the Department as a proverbial backstop and reserve federal resources for specifically targeted priorities.  In the case that a state or jurisdiction did not serve to properly protect established federal priorities, the Department would. With broad discretion for action left to the federal prosecutors over their assigned districts, by 2013 the Department took a back seat to marijuana regulation within states that had legalized and properly regulated its use.

In conjunction with the revocation of the previous five memoranda, Sessions directed prosecutors to “follow the well-established principles that govern all federal prosecutions.”[56] Session pointed federal prosecutors to the following broad guidance for their discretion: Chapter 9-27.000 of the U.S. Attorney’s Manual as well as the “federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”[57] Having rescinded all previous enforcement priorities of the Department of Justice regarding marijuana since the legalization of recreational marijuana by eight states, the legalization of some form of medical marijuana by twenty-two states, and the limited allowance of some form of extract by another fifteen states,[58] this short memo has left a series of looming questions for America: What are the federal law enforcement priorities of United States Attorney General Jeff Sessions? Does he plan to redefine the traditional balance of state and federal responsibility regarding the CSA? And how will his priorities as the United States Attorney General affect the $6.6 billion dollar marijuana industry[59] in America?

Medical Marijuana: A Brief Reprieve from Sessions Scrutiny

Despite the revocation of previous guidance that offered protections for individuals abiding by state law regarding marijuana, the dearth of the United States Attorney General’s reach only extends as far as Department of Justice funding. In 2014, Congress passed the Rohrabacher-Farr Amendment, now called the Rohrabacher-Blumenauer Amendment (Amendment), which effectively prohibited the DOJ from using federal funds to enforce federal law against certain enumerated states whose laws authorize the cultivation and use of medical marijuana.[60] Again in 2015, the Amendment was passed.[61]  Initially, the Department’s interpretation of the Amendment merely prohibited the Department from using federal funds against State agencies.[62]  However, the Ninth Circuit has held that interpretation to be incorrect.[63] On Friday, December 22, 2017, the Amendment was continued in conjunction with the temporary spending bill necessary to avoid a government shutdown.[64] This continuance offered protections through January 19, 2018 for the enumerated states.[65]


[1] Memorandum from United States Attorney General Jefferson B. Sessions, III on Marijuana Enforcement to All United States Attorneys (Jan. 4, 2018), https://www.justice.gov/opa/press-release/file/1022196/download.

[2] Id.

[3] Id.

[4] Id.

[5] Federal Controlled Substances Act, 21 U.S.C. § 801 et seq.

[6] Bank Secrecy Act, 18 U.S.C. §§ 1956-57, 1960; 31 U.S.C. § 5318.

[7] Sessions, supra note 1.

[8] Memorandum from United States Deputy Attorney General David W. Ogden on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana to Selected United States Attorneys (Oct. 19, 2009), https://www.justice.gov/archives/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states.

[9] Memorandum from United States Deputy Attorney General James M. Cole on Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use to United States Attorneys (June 29, 2011), https://www.drugpolicy.org/sites/default/files/DOJ_Guidance_on_Medicinal_Marijuana_1.pdf [hereinafter Cole Guidance Regarding Ogden].

[10] Memorandum from United States Deputy Attorney General James M. Cole on Guidance Regarding Marijuana Enforcement to All United States Attorneys (Aug. 29, 2013), https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf [hereinafter Cole Guidance on Marijuana Enforcement].

[11] Memorandum from United States Deputy Attorney General James M. Cole on Guidance Regarding Marijuana Related Financial Crimes to All United States Attorneys (Feb. 14, 2014), https://dfi.wa.gov/documents/banks/dept-of-justice-memo.pdf [hereinafter Cole Guidance on Marijuana Related Financial Crimes].

[12] Memorandum from Executive Office for United States Attorneys Director Monty Wilkinson on Policy Statement Regarding Marijuana Issues in Indian Country to All United States Attorneys (Oct. 28, 2014), https://medicalmarijuana.procon.org/sourcefiles/DOJ-policy-statement-regarding-marijuana-issues-in-indian-country.pdf.

[13] Ogden, supra note 8.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Ogden, supra note 8.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Ogden, supra note 8.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Cole Guidance Regarding Ogden, supra note 9.

[32] Id.

[33] Id.

[34] Cole Guidance on Marijuana Enforcement, supra note 10.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Cole Guidance on Marijuana Enforcement, supra note 10.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Cole Guidance on Marijuana Enforcement, supra note 10.

[47] Id.

[48] Cole Guidance on Marijuana Related Financial Crimes, supra note 11.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Wilkinson, supra note 12.

[55] Cole Guidance on Marijuana Enforcement, supra note 10.

[56] Sessions, supra note 1.

[57] Id.

[58] Ryan Struyk, Marijuana Legalization by the Numbers, CNN Politics (Jan. 4, 2018, 4:50 PM), http://www.cnn.com/2018/01/04/politics/marijuana-legalization-by-the-numbers/index.html.

[59] Id.

[60] Charles J. Russo, J.D., Ed.D., Suzanne E. Eckes, J.D., Ph.D., & Allan G. & Osborne, Jr., Ed.D., Schools and the Legalization of Marijuana: An Emerging Issue Introduction, 343 Ed. Law Rep. 647, 653 (2017).  Note that “Congress passed the Rohrabacher–Farr Amendment to the Consolidated and Further Continuing Appropriations Act of 2015 in 1994 as Pub. L. No. 113–235, Sec. 538; 128 Stat. 2130, 2217. The statute enumerated ‘the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin,’ as being covered by this provision.’”

[61] Alex Pasquariello, Trump Signs Stopgap Spending Bill Extending Federal Medical Marijuana Protections a Few More Weeks: Congress kicks the proverbial bong down the road once again, the Cannibist (Dec. 22, 2017, 11:07 AM), http://www.thecannabist.co/2017/12/22/federal-budget-medical-marijuana-rohrabacher-blumenauer-extended/95178.

[62] Id.

[63] See United States of Am. v. Marin All. for Med. Marijuana, 139 F. Supp. 3d 1039 (N.D. Cal. 2015) (holding “that Department of Justice was precluded from enforcing permanent injunction prohibiting medical marijuana dispensary from distributing marijuana to extent dispensary complied with California law”). But see United States v. Tote, No. 1:14-MJ-00212-SAB, 2015 WL 3732010, at *5 (E.D. Cal. June 12, 2015) (“find[ing] that Defendant has not demonstrated that dismissal of the information in this action is warranted”).  It is worth noting that the defendant in Tote was breaking the California law of driving under the influence and the federal agency that pursued the prosecution was not the Department of Justice, but rather was the United States Forest Service, an agency of the United States Department of Agriculture.  The court made it a point to note that the Amendment did not prohibit any federal agency except the Department of Justice.

[64] Pasquariello, supra note 61.

[65] Charles J. Russo, J.D., Ed.D., Suzanne E. Eckes, J.D., Ph.D., & Allan G. & Osborne, Jr., Ed.D., Schools and the Legalization of Marijuana: An Emerging Issue Introduction, 343 Ed. Law Rep. 647, 653 (2017).  Note that “Congress passed the Rohrabacher–Farr Amendment to the Consolidated and Further Continuing Appropriations Act of 2015 in 1994 as Pub. L. No. 113–235, Sec. 538; 128 Stat. 2130, 2217. The statute enumerated ‘the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin,’ as being covered by this provision.’”

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