The confirmation of U.S. Sen. Jeff Sessions, R-Ala., as the next attorney general introduces the biggest challenge to legalized recreational marijuana to date. The former federal prosecutor’s view about shifting social attitudes toward weed is clear, with Sessions saying last year that “good people don’t smoke marijuana.”
“We need grown-ups in charge in Washington deciding that marijuana is not the thing that ought to be legalized,” he said in April 2016 at the Caucus on International Narcotics Control. “This drug is dangerous. You cannot play with it. It’s not funny.”
Spokane attorney Frank Cikutovich, who has represented a number of the best profile local defendants in federal marijuana crackdowns, said he takes Sessions at his word.
“He’s of the view that it’s no good, it’s the devil drug,” Cikutovich said. “He could not be more clear about what his position is. Regrettably, he’s got the power to say from this moment. We will begin enforcing the federal law to the letter.”
And that could put everyone involved in the production and sale of marijuana in federal legal difficulty.
Some 56 percent of Washington state voters approved an initiative decriminalizing marijuana in the year 2012 and permitting a closely regulated marketplace.
In the past few years since, business has boomed.
Spokane County marijuana retailers licensed by the state sold $74.1 million worth of legal pot in 2016, according to records released by the Washington Liquor and Cannabis Board.
Those sales generated $27.5 million in taxes collected by the state.
Washington and Colorado in 2012 passed the first laws in the country that permitted recreational use of marijuana, although sales didn’t star in the Evergreen State until 2014. That list now includes California, Oregon, Alaska as well as the District of Columbia. This past November, Nevada, Maine and Massachusetts passed similar laws and 28 states have legalized the usage of medical marijuana.
On the other hand, the state-by-state move to legalize marijuana consistently has worked under an uneasy understanding with federal authorities. U.S. law still considers marijuana an illegal narcotic on level with methamphetamines, cocaine and heroin.
The industry propagate after 2013 when the U.S. Department of Justice issued a memorandum declaring that it wouldn’t challenge states on marijuana legalization as long as they put in place safeguards to keep the drug out of the hands of minors and criminals.
Without federal government intervention, marijuana businesses have boomed. A recent report from ArcView Market Research, a cannabis industry research group, called that national sales of legal marijuana could approach $22 billion by 2020. That would mean marijuana sales would outpace revenue generated from the National Football League.
Sam Calvert, founder and owner of Greenstar Cannabis on Division Street, was clearly one of the very first shops to open in Spokane County in 2014. He said he thinks the industry has too much momentum for the brand new administration to quickly dismantle it.
“If (Sessions) does decide to take an aggressive approach, terminate the specific situation through federal enforcement, they’re going to wind up in court,” he said. It doesn’t play into my decision-making right now. I consider it on the peripheral.”
Seattle attorney Douglas Hiatt, who also has defended several marijuana cases in Eastern Washington, called that “wishful thinking.”
“They can’t believe it’s going to be taken away. But I’ve seen it before,” Hiatt said. “The law is crystal clear and we’ve run out of arguments.”
Because Washington’s strict regulations require scrupulous records for folks who grow, warehouse and sell the legal marijuana, federal prosecutors would have all the evidence they need to shut down the industry and prosecute those business owners.
And many shops sell enough marijuana merchandises that are enough to place owners in danger of severe criminal punishments, including 10-year mandatory minimum sentences in federal penitentiary.
“It’s like shooting fish in a barrel,” Hiatt said. “If people think they can’t roll this thing up, then they have another thing coming.”
‘An ever-changing determination’
During his confirmation hearings last month, Sessions was asked whether he’d continue to permit states to run under the Cole memo, which basically said the federal government would look the other way on marijuana in the states.
“If I am fortunate enough to be confirmed as attorney general,I will certainly review and evaluate those policies, including the original justifications for the memorandum, as well as any relevant data and how circumstances have changed or how they may change in the future,” he wrote.
Nonetheless, he noted that marijuana remains illegal under federal law and he is dedicated to uphold the law “with respect to marijuana, even though the precise equilibrium of enforcement priorities is an ever-changing determination predicated on the circumstances and the resources available at the time,” he wrote.
That’s a softer position than Sessions once held.
30 years ago, Sessions said that he believed the Ku Klux Klan was “OK until I found out they smoked pot,” according to testimony given to Congress when he was nominated to be a federal judge.
He afterwards said he was joking, however he stays among the sharpest critics of what he considers the dismantling of Nancy Reagan’s “Just Say No” anti-drug campaign of the 1980s.
Last April, Session said, “Colorado was one of the leading states that began the movement to suggest that marijuana isn’t dangerous. And we’re going to find it, in my opinion, ripple throughout the whole American citizenry. And we’re going to see more marijuana use and it’s not definitely going to be great.”
A group empaneled to counsel Sessions as well as the Trump administration on the marijuana problem comprises 14 prosecutors named by the National District Attorney’s Association. One of them is District Attorney Stan Garnett in Boulder, Colorado.
At their very first meeting, a number of the district attorneys wanted to send letters to governors of states which have approved medical marijuana, telling them to shut those businesses down within 90 days, Garnett told the Boulder Daily Camera last week.
Garnett said he counseled his fellow prosecutors against that move, saying it failed to honor the significance of state and local control.
“I believed that was a particularly unrealistic and ill-advised notion,” Garnett told the Daily Camera. “Legalization has been mainly successful everywhere it’s been tried, therefore it will be a highly unpopular move and difficult to accomplish successfully.”
‘Marijuana to go back underground?’
Individual users would have little to be worried about in the event the federal government takes a brand new, hard line on marijuana enforcement, Cikutovich said.
“The government doesn’t have the resources to go after millions of people,” he said. “But the people in the industry need to be very concerned. They have to be ready to parachute out of the industry immediately if it changes.”
A federal enforcement agent, who spoke only on the condition of anonymity, said he wouldn’t anticipate immediate raids in the event the Trump administration decides to go after the marijuana industry.
In 2011, local federal authorities cracked down on medical marijuana dispensaries by sending them as well as their landlords letters warning of future legal action if they continued. Four of those businesses continued as well as their owners were indicted.
Sessions “may have huge issues with marijuana, and he may share that,” the law enforcement source said. “But how he would then change the enforcement priorities of the department is purely speculative at this point.”
Seattle lawyer Jeffrey Steinborn, who like Cikutovich and Hiatt has worked for many years to defend marijuana clients, said the success of the industry may be its best defense. And legal marijuana’s best ally could possibl be President Trump, who said during the campaign that marijuana legalization should be left to the states.
“I really believe we should study Colorado and see what’s happening,” Trump told a crowd on Oct. 29, 2015. “I think in terms of marijuana and legalization, it should be a state issue, state by state.”
But if Sessions convinces his boss to turn back the clock to the drug wars of the Reagan era, the industry will adapt, Steinborn said.
“Marijuana can go back underground in the blink of an eye,” he said. “And it will if it has to, because it ain’t going away.”