Pennsylvania's medical marijuana system may be in its infancy, but it relies on the good will of the Department of Justice. That's because cannabis remains illegal under federal law.
Under the Obama administration, the Justice Department took a hands-off approach toward legalized medical and recreational cannabis. In 2013, then Attorney General Eric Holder issued what is known as the Cole Memo. The memo, along with other policy guidance, directed federal prosecutors to avoid prosecuting people whose marijuana activity complied with state law. U.S. Attorneys would instead focus their resources on preventing minors from using the drug and keeping legalized marijuana off the black market and out of the hands of gangs.
U.S. Attorney General Jeff Sessions has just overturned the Cole memo and all previous policy guidance limiting marijuana prosecutions. In a new policy memo, Sessions pointed to marijuana's continued illegality under federal law as a reflection of "Congress's determination that marijuana is a dangerous drug and that marijuana activity is a serious crime."
The memo doesn't go so far as to direct U.S. Attorneys to crack down on marijuana activity in states where it is legal for medical or recreational use. Instead, it directs federal prosecutors to consider a set of prosecutorial principles set in 1980 when making decisions about whom to prosecute. They should "weigh all relevant considerations," the memo reads, which include:
- The law enforcement priorities set by the Attorney General
- The severity of the crime
- The deterrent effect criminal prosecution may have
- The cumulative effect of certain offenses within the community
Whether the jurisdiction has legalized cannabis was not listed as a relevant consideration, but it also was not excluded as irrelevant.
Do medical cannabis users in Pennsylvania need to worry about federal prosecution? That is not clear. Since the issuance of Sessions' memo, the U.S. Attorney for the District of Colorado announced that his prosecutorial approach will not change. He said his office prosecutes those marijuana crimes creating the greatest safety threats and that he considers that policy to be in line with Sessions' memo. Other U.S. Attorneys may clarify their plans in upcoming days.
If you have been authorized to use medical cannabis in Pennsylvania and have complied with the law but are still arrested by federal law enforcement, we strongly recommend hiring a criminal defense attorney familiar with the issue.