Update: Asa Hutchinson, Others React to DOJ Policy Change on Marijuana


U.S. Attorney General Jeff Sessions has announced that the Department of Justice will rescind an Obama-era policy that had allowed legalized marijuana to flourish across the country.

Here's the official announcement from the Department Justice, which reads, in part:

... Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities. This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," said Attorney General Jeff Sessions. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

The Arkansas Times has a copy of a memo sent to U.S. attorneys.

The Associated Press reported this morning that the announcement was coming, citing "two people with knowledge of the decision. Specifically:

Sessions' policy will let U.S. attorneys across the country decide what kinds of federal resources to devote to marijuana enforcement based on what they see as priorities in their districts, the people familiar with the decision said.

Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers that have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much more. The decision was a win for pot opponents who had been urging Sessions to take action.

The news may have some in Arkansas' burgeoning medical marijuana industry — and the employers who are trying to get handle on how the industry affects the workplace — wondering how it might affect them.

Gov. Asa Hutchinson called Session's policy change "a very significant development." He said the important question for Arkansas is whether the DOJ will distinguish between medical marijuana, which Arkansas is putting in place now, and recreational use, which is just coming online in California.

"The question is, is what he's going to replace that guidance with?" Hutchinson said. "Whether there's going to be, going back to the consistent federal enforcement against all illegal use of and trafficking of marijuana, or whether there's going to be any carve-out exception in federal enforcement policy."

Hutchinson said he thinks there must be a "difference in view" between medical and recreational marijuana.

"And if you look at where Sen. Sessions — now Attorney General Sessions — may wind up on this issue, you should look at where President Trump has been," Hutchinson said. "And President Trump has recognized medical marijuana as an appropriate exception to federal enforcement policy, but [he] has not said the same thing about recreational use."

Hutchinson also said Arkansas must watch how the DOJ handles the financial side of enforcement.

"There's been an exception, so that even though it's not recognized as legal conduct under federal law, they said you could go ahead and do certain banking transactions under certain requirements," he said. "And obviously that impacts us in Arkansas with the medical marijuana products and businesses that are being developed as to how they will handle their revenue streams and how that's reported and tracked."

Bud Cummins, who was U.S. Attorney in the Eastern District of Arkansas during the George W. Bush administration, said Thursday that he doubted Sessions' directive would change much about the way marijuana crimes are prosecuted at the district level.

"I'd be a little surprised to see a federal prosecutor go after a state-sanctioned medical marijuana business," he told Arkansas Business.

But a heavier hand in Washington could certainly create more uncertainty for marijuana-related businesses, Cummins said, particularly financial institutions which are federally insured and therefore already subject to constant federal regulation. Few banks are willing to provide services to marijuana businesses in the first place, and Sessions' announcement "will make them even more uncomfortable."

Sessions is also reminding federal lawmakers that the issue of marijuana is legally murky, Cummins said. 

"If Congress wants to change the law, they should do it," he said.

David Couch, who wrote the medical marijuana ballot item that Arkansas voters approved in 2016, agreed.

"I think this will put more pressure on Congress to address what I consider to be a state's rights issue," he said. "The voters of Arkansas passed this law. Our representatives and senators should respect the will of the Arkansas voters on this issue and not the dinosaur from Alabama [Sessions]."

We also reached out to two Arkansas attorneys who have been closing following the growing medical marijuana industry in Arkansas to get their initial reactions.

Here's what Erika Gee, a partner at Wright Lindsey Jennings of Little Rock, and Stuart Jackson, who leads WLJ's labor and employment law team, had to say this morning, before the official announcement by the DOJ:

Gee:

I can say that the discussion about the Trump administration’s possible changes has really focused on the states where recreational use is legal. The Cole memo [the Obama-era rule] they are rescinding is about prosecutorial discretion and the appropriate use of federal resources. I would not expect a huge immediate effect on Arkansas' program, unless federal authorities based in Arkansas choose to make it a specific priority.

Jackson:

From an employer's standpoint, I'd say it's a "let's watch and see what happens" situation. Arkansas employers should still prepare for it by A) educating themselves on employee and employer rights and obligations under the Medical Marijuana Amendment and the modifications to the amendment made by the General Assembly and B) drafting a medical marijuana policy covering applicants and employees.  

If I had to guess, those states with recreational marijuana face more of a threat of federal government intervention. Arkansas might be in the cross-hairs of the federal government if it doesn't do a good job regulating medical marijuana. 

Interesting note – ATF makes it clear that it does not recognize medical marijuana use as legitimate when it comes to the sale or possession of firearms. See section 11(e).

(By coincidence, we published a new column by Jackson today on what Arkansas employers might expect in the realm of medical marijuana. You can read it here.)

Also this afternoon, the Arkansas Medical Marijuana Association called on the state congressional delegation to support reauthorization of the bipartisan Rohrabacher-Blumenauer Amendment as part of the 2018 budget.

The amendment, the group said, "prevents the Justice Department from interfering with medical marijuana businesses and patients that operate in compliance with state law."

"The Association will work with the congressional delegation to ensure that Arkansas continues to have the right to administer a successful medical marijuana program," the AMMA said.

(Gwen Moritz and Kyle Massey contributed to this article.)