The Cole Memo 2.0: This Changes Everything

After Attorney General Holder’s announcement last February that the Department of Justice would soon be coming out with its new policy on how it would address the renegade states of Colorado and Washington, who had done the unthinkable by legalizing marijuana, we waited with great anticipation for the moment of splendid audacity. Six months later, the Memo arrived.

The Cole Memo 2.0 makes one thing clear: the feds won’t be storming the Rockies today. Tomorrow? Well, who knows, since it turns and twists and wiggles as only a DOJ memo can. Of course, it does not direct the United States Attorneys to immediately send out its troops to round up the usual suspects. But then, it also doesn’t direct them not to, if they feel like it.

The Ogden Memo of 2009 told the nation’s prosecutors to lay off medical marijuana, starting the feds to double its effort to prosecute lawful providers. That necessitates the Cole Memo of 2011 (Cole Memo 1.0) to explain that when the Ogden Memo said that it would be an “inefficient use of limited federal resources” to prosecute lawful medical marijuana providers, it meant get off your butts and nail those suckers.

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.

With that understanding, Cole Memo 2.0 provides an illuminating laundry list of federal enforcement priorities to better focus its limited resources:

• 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; and

• Preventing marijuana possession or use on federal property.

As long as states do nothing to impair these federal priorities, such as preventing drugged driving,  by “implementing strong and effective regulatory and enforcement systems,” whatever those may be, the feds are cool with whatever states decide to do.  Or not.

If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.

Recalling the cold war days where the slightest change in a word of a pronouncement in Pravda was thought to signal a paradigm shift in the Kremlin, some readers of the Cole Memo 2.0 are looking at the most nuanced secrets lurking within the wiggle words to find hope and change. My suspicion is that they do so because they so desperately want to find hope and change, and perhaps believe that if they hail this memo as saying something when it, at least based on words, does not, maybe it will move people to their side of the argument if they believe the government no longer hates pot.

But that’s a dangerous game to play. The Cole Memo 2.0 doesn’t offer hope to much of anyone. It doesn’t say much of anything, and clearly doesn’t provide a foundation upon which anyone can rely.  The best one can do is believe that there is some double-secret message hidden between the lines, that perhaps the administration is testing the waters to see whether people will pull out their pitchforks if they don’t protect their wimmenfolk from pot-crazed rapists.

At Reason Hit & Run, Jacob Sollum offers a roundup of the knee-jerk reactions to the Cole Memo 2.0. As he describes it, the reactions ranged from dismay to exuberance to skepticism.  While the points made are interesting, even if some are a bit overly aspirational, no one appears to ask the critical question that belies any change in the United States of America’s acceptance of the right of a state to legalize marijuana, either for recreational or medical use: Why not remove marijuana as a Schedule I narcotic?

While the Cole Memo 2.0 does back off its predecessor’s policy that “size and commercial nature” of lawful marijuana sellers no longer compels the immediate use of SWAT teams to take them out, it does not direct them to be left alone either. Rather, it remains agnostic as it defers to the local United States Attorney’s judgment.  And lest anyone’s hopes soar, bear in mind the Ogden Memo’s suggestion that medical marijuana be left alone, causing more busts in the first Obama term than in the two previous terms of the Bush administration.

Finally, the Cole Memo 2.0 closes with the usual caveat:

As with the Department’s previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA. Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances. This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution. Finally, nothing herein precludes investigation or prosecution, even in the absence of anyone of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.

Whew. The TL;dr version is that the memo means nothing anyway. So has this memo changed everything? You bet, for those who were wondering when exactly the audacity of the president’s lame duck term would finally kick in and he would fulfill some of those promises he made when asking for votes.  As President Obama’s flack explained when asked whether he was ready to move marijuana off Schedule I, “not at this time.”

So for those who believed that this would be the shining moment when audacity would reign supreme, the Cole Memo 2.0 changes everything. The answer is no, there will be no audacity. There will be no change. And that changes everything if you had any hope otherwise.

5 comments on “The Cole Memo 2.0: This Changes Everything

  1. Alex Stalker

    Here in Washington State, the local media has almost universally interpreted this memo as the Feds promising that they will leave our marijuana alone. I have not seen any reactions from local government figures. Considering the popularity of the initiative, the local U.S. Attorney’s office would probably get some local political backlash if they decided to initiate prosecutions.

    Although the Feds have executed raids against several of the local dispensaries (medical MJ ones) I’m not aware of any prosecutions arising from those raids. It would seem that although the DEA likes raiding them, as yet no cases have been filed. Looking at Western Washington’s U.S. DA Jenny Durkan’s “2012 Report to the Community” the only mention of drugs is an initiative emphasizing treatment along with sanctions. I haven’t yet seen any indications of intent to prosecute. Of course, that could change at any time.

    Sorry if that went off-topic.

    1. SHG Post author

      Not off topic at all. While the US Attorney might prefer not to become a focal point of public anger, it’s not an elective position and she answers to Washington, not the voters. The lack of prosecution since legalization may be a precursor, or it may have been awaiting marching orders from Cole. From Washington’s perspective, it creates a bit of a problem to have a federal law that says it’s a crime enforced in one place and ignored in another. Either it’s a federal crime or it isn’t.

      The point isn’t to suggest that they should prosecute in Washington (or Colorado), but that if it’s not going to be enforced in those states, then there is no legitimate basis for maintain it as a Schedule I drug and prosecute (and punish) it elsewhere.

      As for how the local press “interprets” the memo, meh. It’s about as meaningful as how I interpret quantum physics.

      1. Alex Stalker

        Yes, the USA’s are appointed, not elected, but as political appointees serving at the will of the president I suspect their decisions are fairly strongly influenced by politics, including local politics.

        The point of my post was merely to advise you of the local public’s interpretation of the memo. It’ll be interesting, and quite likely very disappointing, to see how this plays out.

    2. Nick

      We thought that in California on the first memo. Medical MJ flourished just enough to get attention and a couple years later people like Aaron Sandusky are doing a decade in prison.
      You’d have to be pretty foolish to rely on something like this to open a pot shop, because last time people did that a number when to federal prison for a long time.

      1. SHG Post author

        I think that’s exactly right. We were down this road with the Ogden Memo, and look how that turned out.

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