The Puff, Puff, Pass of Law and Order

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It should come as no surprise that U. S. Department of Justice is turning back yet another set of Obama-era rules.  It seems it’s the Attorney General’s mission in life.  In a memorandum issued January 4, 2018 the Attorney General rescinded a set of memos from the Obama administration governing the federal government’s approach to marijuana policy in marijuana-friendly states.

“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.”   – Attorney General Jefferson Beauregard Sessions

The Obama administration viewed the passage of state laws governing the use of marijuana for medical, and in some states, recreational purposes, as an issue that could strangle already finite federal resources and effectively relaxed federal enforcement of marijuana.  But the issue here is not simply a political one.  Why?  Let’s go back to 2010.

Taking it to the Streets

The early morning executive meeting of a U. S. Homeland Security Investigations’ (HSI) district leadership team during the early fall of 2010 focused principally on the district’s overall performance.  The eight executives had received word from Washington, DC that the special agents under their command were under performing.  Several executives had work experience in various parts of the country and abroad.  Some had served as leaders or members of the agency’s professional responsibility team that ensured adherence to ethical and legal standards by employees of the agency.  The senior executive opened the floor in search of ideas.  One executive leaned on his experience on the Texas-Mexico border – partner with local law enforcement to increase statistical achievements.  The details of his proposed strategy was nothing short of shocking.

An executive with more than 20 years of federal investigative experience, sworn to defend and protect the Constitution of the United States, sat among his peers and explained how an entire division of a federal law enforcement agency padded the books.  He explained how the leadership promoted an illusion that the trusted public servants under their command were productive when, in fact, they merely claimed the work of their state and local partners as their own.  The men and women in that meeting listened quietly to the story of state and local law enforcement officers’ distrust, at first, of “the feds”.  As the details of the strategy grew clearer, I grew to distrust the executive as well.

Essentially, the strategy was a numbers game.  When an officer with a state or local law enforcement officer arrested an individual or made a seizure that met the thresholds set by the United States Attorney in the district, the officer was asked to contact the HSI office immediately.  An HSI Special Agent would respond to the scene, collect all of the information from the officer and use that information to later prepare official government reports documenting that HSI “assisted” in the arrest and/or seizure.  The person arrested and most items seized were then “turned over to” (TOT) the local law enforcement office for incarceration and storage.

Seems odd right?  You’re probably wondering why a state or local officer would simply give the fruits of his or her labor over to another agency.  Money.

Seizure and Forfeiture

Law enforcement offices in the United States are funded by government appropriations on either a federal, state or local level.  Those offices, however, supplement their appropriated budgets with the proceeds from the forfeiture of assets seized during the course of its operations.  How that money is divided can be a bargaining chip.  The executive above was proposing just that – use of asset forfeiture as a bargaining chip to encourage state and local offices to become complicit in a confidence game by public servants sworn to ensure public safety.  Here’s how it works.

A state or local office, generally, shares the proceeds from asset forfeiture with the prosecutor and any other law enforcement office that assisted in the arrest and seizure.  Many prosecutors, however, retain 80 percent of these proceeds leaving only 20 percent for the state troopers, deputies or police officers.  At times the remaining 20 percent has to be shared with law enforcement offices that assisted in the enforcement operation.  That’s not much for a lot of work . . . sometimes very dangerous work.

The executive went on to explain to his peers that Special Agents with HSI could begin adopting those state and local cases and giving the originating law enforcement office the lion’s share of the proceeds – based primarily on the fact that they did the lion’s share of the work.  How generous.  Of course, the executives in the meeting were quite familiar with asset sharing.  Each had, at some point in his or her career, been directed or motivated to adopt state or local cases and prosecute them on the federal level.  Very often the prosecution would end in a plea agreement on the federal level due largely to the Department of Justice mandatory minimum sentence policies.  A win for every agency involved.

When the executive concluded his presentation, the room fell quiet.  No one reminded this executive that we had been officially identified as a district whose personnel was compensated exceptionally well despite continued under performance.  I equated the silence as agreement that encouraging employees to embark on a quest to piggyback on work of state and local law enforcement officers was an acceptable solution to the problem.  I simply could not remain silent.

I made two decisions that day.  I looked around the room and drew conclusions about the integrity of the Special Agents with whom I served.  Several fell far short of an acceptable norm.   I decided that I had a greater chance of maintaining my integrity if I spent the remainder of my tenure with HSI involved in the restructure of the agency’s intelligence collection infrastructure.

Obama Era Guidance   

“[A]vailable evidence is not sufficient to determine that marijuana has an accepted medical use.”   – FDA, August 2016

We must first recognize that, under federal law, medical marijuana does not actually exist.  Medical marijuana doesn’t exist because a drug can only be sold or prescribed in the United States after obtaining approval by the Food and Drug Administration (FDA).  Following a scientific and medical evaluation and a recommendation from the FDA, the Drug Enforcement Administration (DEA) could exercise its authority to rescheduled marijuana from Schedule I to Schedule II.  As recently as August 2016, the FDA recommended that marijuana remain in Schedule I.  Because the FDA has found that “. . . available evidence is not sufficient to determine that marijuana has an accepted medical use”, the manufacture, distribution or possession of marijuana remains a criminal offense, regardless of whether a state passes legislation approving its use within the confines of its borders.

In 2009, and again in 2011 and 2013, then Attorney General Eric Holder announced formal guidelines (commonly known as the Cole Memorandum) for federal prosecutors in states that had enacted laws authorizing the use of marijuana for medical purposes.  Although the guidance directed federal prosecutors to generally refrain from prosecuting marijuana businesses in compliance with state laws, it was consistent with the classification of marijuana as a Schedule I controlled substance and did not say that these businesses were immune from federal criminal prosecution.  Civil money penalties and asset forfeitures were not addressed by the Cole Memorandum.

Enforcement of federal marijuana laws in those states that have passed legislation related to the medical use of marijuana was further limited by Congress when the 2015 and 2016 appropriation bills barred DOJ from using appropriated funds to prevent states from implementing state laws authorizing the use, distribution, possession, or cultivation of medical marijuana.  This lack of funding and the guidance from then Attorney General Holder merely form a climate of non-enforcement not immunity.  In my read of the relevant guidance, prosecutors were directed to continue their case-by-case review of marijuana cases in accord with well-established DOJ principles governing all federal prosecutions and priorities.

Putting the Pieces Together

Why am I telling you this?  We should not forget that, in a sweeping move early in his tenure, Attorney General Sessions reversed a key element of the Obama administration’s criminal justice reform platform essentially reviving mandatory minimum sentencing policies.  When you couple that with the realization that the scenario I described above is all too common in law enforcement and with the DOJ reversal of Obama-era guidance on marijuana enforcement, the indicators are that the criminal justice landscape for the burgeoning marijuana industry could rapidly change. 

Schedule I contains substances that have been determined to have “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use of the drug or other substance under medical supervision.” (21 U.S.C. § 812(b)(1).)

  Despite the passage of medical marijuana or adult use (recreational) marijuana laws in a number of states, marijuana remains a Schedule I drug under the Controlled Substances Act and is, therefore, illegal everywhere in the United States under federal law.  Schedule I controlled substances cannot be prescribed; it is a federal crime to possess, distribute, or dispense a Schedule I controlled substance.  Marijuana, therefore, is a Schedule I controlled substance treated the same as heroin, LSD, and ecstasy.

Here’s where the DOJ action on January 4th becomes more than just a political move to erase the Obama legacy.  Legal marijuana business operators can be prosecuted under federal drug and money laundering criminal statutes.  Doctors, bankers, investors, lawyers, landlords, real estate brokers, and other vendors who help these businesses operate or refer customers to them may face prosecution under the same criminal statutes.  Tax, civil money penalties and asset forfeiture are also areas of grave concern for anyone in the marijuana industry.

That January memo gives federal prosecutors greater latitude to prosecute marijuana related cases.  It also opened the door for similar scenarios like the one I described above.  In nearly all law enforcement environments, it is the local police officers that are closest to the commission of crimes.  They have a unique understanding of their communities.  They know the residents, the business owners and they encounter those committing crimes far more frequently than federal law enforcement officers.  As such, every federal law enforcement agency with a drug enforcement program would be wise to form strong partnerships with their state and local counterparts.

That brings us back to the mid-morning executive meeting.  Will everyone, locally and in Washington, sit quietly while AG Sessions lays out this strategy?  Will the influx of money from businesses compliant with states laws governing marijuana use be too tempting for federal executives who share the philosophy of the ones I described above?  Will state and local law enforcement offices be lured into partnerships with the promise of a greater share of the proceeds from asset forfeiture?  Will law enforcement follow the same patterns of the failed War on Drugs of the 1980’s in their efforts to identify targets of the investigations under DOJ’s latest marijuana enforcement guidance or will the federal government prioritize those who clandestinely use the new state laws to threaten our public health or safety or will they focus mainly on the low hanging fruit?