Recognizing that many states had begun to decriminalize marijuana under some conditions — and that state and federal officials share law enforcement and prosecution authority — the memo identified eight priorities to guide prosecution.
These guidelines included:
- 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
- Preventing marijuana possession or use on federal property
In January 2018, Attorney General Jeff Sessions issued another guidance memorandum, which essentially rescinded the 2013 guidance for federal prosecutors. In other words, the charging of marijuana crimes is left to the discretion of the United States Attorney without having to consider the above priorities.
The ultimate effect of Mr. Sessions’ guidance remains to be seen. With 93 United States Attorney offices in the country, practice will likely vary throughout the country. More recently, however, Congress renewed the Rohrabacher-Blumenauer Amendment, in effect through continuing resolution since 2014. That amendment prevents the Department of Justice from spending certain funds on the prosecution of people who operate in strict compliance with state medical marijuana laws. See, e.g., United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016).