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Despite Sessions’ shift on marijuana, former U.S. attorney McQuade expects ‘business as usual’

Credit tanjila ahmed

The headlines this week have been peppered with news of Attorney General Jeff Sessions “unleashing” federal prosecutors on legal marijuana. This runs counter to the Cole Memo of 2013, in which federal prosecutors were asked to limit their actions in states that legalized marijuana.

Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan, spoke with Stateside’s Lester Graham to explain how the attorney general’s directive will impact Michigan and other states with medical and recreational marijuana laws.

Listen to the full conversation above, or read highlights below.

What is the Cole Memo?

“[The Cole Memo] specified that U.S. attorneys should defer to states that had well-structured and robust regulatory systems and let states enforce those. So for individual users, for people who were complying with their state medical marijuana laws, the feds should stay out of that. It really always had been the case, but I think [former U.S. Attorney James Cole] wanted to memorialize it so that states could go forward with their laws with the understanding that the feds wouldn’t be intervening.”

What will change now that the Cole Memo and others related to marijuana enforcement have been rescinded?

“I think the likely impact might be actually relatively minor. What Sessions has said is he wants to provide maximum discretion to U.S. attorneys to decide how best to enforce the laws in their states. I’ve already seen U.S. attorneys in those states that have recreational marijuana laws issue statements saying, essentially, ‘Business as usual, we’re going to continue to focus on those major drug trafficking organizations with ties to cartels and gangs that impact public safety as we always have, and we’re really not going to focus our scarce federal resources on these individual growers and dispensaries and that sort of thing.’”

“I think the only possible problem from this is the uncertainty that it creates. The Cole Memo sort of memorialized what the practice had been, what it would be, and gave some certainty to state actors and federal actors about this is how we're going to do business. By rescinding the memos, I think there now may be a little bit of uncertainty about how things are going to proceed, and so we may have a period of growing pains.”

How will these changes impact Michigan?

“In districts like ours, the Eastern District of Michigan, we have so many very serious crimes—major drug trafficking organizations that bring with them violence—that’s where the focus will be."

“A far more serious threat to public safety right now is opioids, and I worry that resources could be diverted from opioid enforcement to marijuana enforcement.”

But what about states’ rights?

“It’s a little ironic that the party that so often talks about respecting states’ rights and the Tenth Amendment is legislating from Washington to say how we’re going to do things. So I find that a little bit ironic. The Cole Memo was designed to further the interests of comity, which says that we live in this dual sovereignty system and we have to respect the laws of the states while we enforce federal laws.

“So I do think that it sort of disrupts that, that the will of the people in those 29 states have said one thing, and the federal government is trying to bring in a heavy hammer to do something else.”

U.S. attorneys in other states like Colorado have issued public statements in response to Attorney General Sessions' shift on marijuana enforcement. We contacted the U.S. Attorney offices for the Eastern District and Western District of Michigan for their perspectives. Neither office responded with a statement.

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