The Sessions Memo and Blunt Force Trauma

Less than 24 hours ago, Attorney General Jeff Sessions issued a memorandum rescinding the Ogden and Cole memos as superfluous. And the impact was immediate.

As arrests mount once again, as the black market bounces back, as vital police resources are wasted, Trump’s new era of prohibition will have the same effect as that of the old Prohibition: to make criminals of nonviolent citizens, and cynics of the law.

Except arrests didn’t mount. The black market hasn’t bounced back. Vital police resources weren’t wasted. The reason none of this happened, despite it appearing in the New York Times as if it did, is that the Sessions Memo doesn’t do much of anything, anymore than the Cole Memo did much of anything. Not that it won’t make people shriek and write op-eds about how the sky is falling.

Ken White at Popehat does the heavy lifting of explaining why this is so. The Sessions Memo, like the Cole and Ogden Memos before it, is about allocation of scarce federal prosecutorial resources. Marijuana has been a Schedule I drug all along, and is illegal to sell or possess under federal law. That hasn’t changed.

It was illegal under President Obama. It’s still illegal. And the feds have prosecuted marijuana cases all along, although their interest has been limited to big operations. They’re not sending DEA agents out on the streets looking for kids with reefer.

At Reason, Jacob Sollum offers a sober view of the Sessions Memo.

On paper, Sessions’ memo does not change DOJ policy. By his own account, it merely eliminates gratuitous guidance that was already implicit in the DOJ’s “well-established general principles.” The question is whether U.S. attorneys will now be more inclined to go after the many highly conspicuous, state-licensed marijuana suppliers who are openly committing federal felonies every day. Although the Justice Department does not have the resources to prosecute all of them, a few raids, or even a few threatening letters, would seriously disrupt the industry.

From the federalism perspective, this was a litmus test of respect for state’s rights. When citizens of a state vote to legalize weed, they express their popular view and expect the government to respect it. That the feds persist in keeping pot illegal floats in the background, but neither Democratic nor Republican nor bi-partisan Congresses ever saw fit to change the law. Life continued, nonetheless.

In Colorado, where pot is legal, the interim United States Attorney issued a press release to let people know that this ain’t no big thing.

Bob Troyer, whom Sessions picked as the interim U.S. attorney in Colorado last November, issued a press release saying today’s memo will not affect his prosecutorial choices. “The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions—focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state,” Troyer said. “We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

If you read Sollum, you can breathe a sigh of relief. But if you read Timothy Egan, you’re left breathless.

There comes a time in the evolution of social policy when law enforcement, science, medical authorities and the majority of the public reach a consensus about changing course. At this moment, criminalizing marijuana has never been more unpopular, nor a more unjust way to ensure that otherwise law-abiding people have to fear the police.

Except Sessions didn’t criminalize marijuana. It was always a federal crime. It never stopped being a federal crime.

And yet, after the government spent more than $1 trillion over the last four decades on the failed drug war, Trump now wants to double down on the most failed aspect of modern prohibition. According to the most recent statistics, more than a million people a year are arrested for simple drug possession in the United States — and more than half a million of those arrests are for marijuana possession.

There are still a lot of people arrested for weed. But they’re arrested by states, not the feds, and Sessions has absolutely nothing to do with this. Somebody should have told Egan this.

More people are arrested for pot possession than all the crimes that the F.B.I. classifies as violent — one arrest every minute. This at a time when only 14 percent of the people think marijuana should be illegal. The voters have spoken on this, in the 29 states and the District of Columbia where marijuana use is legalized in some form.

And that leaves 31 21 states where pot remains illegal, and that’s where almost all those people are being arrested. New York is one of them, and it’s ridiculous that conduct which is lawful across a border will put you in prison here. Crazy stuff. But stuff that has little to do with the feds, and even less to do with the Sessions Memo.

The feds have always had the “authority” to go after cannibusiness in states where marijuana was legal. And they have, on occasion. One of the great failures of criminal reform under the Obama Administration, when it held the Congress, was the failure to remove marijuana from Schedule I. But it failed. Congress changed no law. Reefer Madness was still shown in the Senate movie theater.

But whipping up hysteria does nothing to help the situation. Sessions has always been a drug warrior, refusing to see that pot just isn’t that awful drug that turns good people into wild-eyed killers. But as much of a troglodyte as he may be on weed, as reflected in his Senate opposition to the Rohrabacher-Farr amendment, he didn’t direct his storm troopers to break down your door because junior has a bong hidden in his sock drawer.

In announcing the throwback to a discredited policy on Thursday, Sessions described the effort as a “return to the rule of law.” It’s a return to insanity, and to creating more outlaws. From here on, federal prosecutors will have discretion to attack small-business owners selling a product deemed legal by their state. Weren’t Republicans supposed to be champions of states’ rights?

Or it’s of little substantive significance. However, Egan is right that Republicans were supposed to be champions of states’ rights, and Sessions’ Memo fails to show states the respect they’re due. At the same time, progressives aren’t champions of states’ rights, but rather federal social engineering. Has he suddenly discovered the virtues of federalism? Too bad the feds didn’t fix pot laws before Sessions was appointed.

Why Sessions thought it prudent to issue a memo that essentially changed nothing while giving ammo to the hyperbolic isn’t clear. Maybe it’s about “sending a message,” though the message is that Sessions is severely out of touch with America, not that anyone suspected otherwise. But with so many serious reasons to be concerned about government, this just isn’t one. It’s just more noise, the loudest of which is the shrieking of the woke yet ignorant.

21 comments on “The Sessions Memo and Blunt Force Trauma

  1. wilbur

    “The voters have spoken on this, in the 29 states and the District of Columbia where marijuana use is legalized in some form. … And that leaves 31 states where pot remains illegal”

    I always thought we needed 60 states. Glad that finally came to be.

    The Federales won’t even think about taking a pot bust unless it’s into many hundreds of pounds. At least that’s how it is in South Fla. And it’s just a matter of time until it’s made legal here too.

      1. Jyjon

        doing math captcha’s must be a bitch for you. You must be glad you got the picture ones now, except when they say click on the pictures with autos but none of them have autos…life is so hard.

    1. kushiro

      As far as I remember, 60 is the actual number of states, according to Obama (not 57, as his outraged critics believed).

  2. Dan

    How do people believe that “states rights” gives the states the power to make legal what’s criminalized on the federal level? This isn’t a states rights issue in the least. If the federal prohibition on marijuana is constitutional at all (which I don’t think it should be, but alas I don’t sit on the Supreme Court), then Supremacy Clause, argument over.

    Obama ignored Congress, and chose to act with his phone and with his pen. Now that he’s no longer president, his replacement is acting with *his* phone and pen. And likely as not, his motivation is nothing more than “undo whatever Obama did.” And, of course, the progressives are reliably hyperventilating with every single action he (or his administration) takes.

    1. SHG Post author

      To understand why this presents a problem requires a certain depth in understanding the commerce clause and crim law history. This isn’t the post to get into it, but it is most assuredly a states rights issue.

  3. Matthew S Wideman

    I saw a few “sky is falling” Facebook posts this morning regarding this issue (FACE PALM). I almost commented the same thing to five people. But, I didn’t have the energy to remind people pot is illegal under federal law. It has been as long as I have been alive, and was illegal during the Obama administration.

    Kudos to SHG for doing on a national level what many of us are too tired to do on a personal level.

    1. SHG Post author

      This is why I never get invited to progressive wine and cheese parties anymore. Then again, that’s not a bad thing, since they always ask me to bring the wine.

      And the cheese.

      1. REvers

        Kind of like going to a feminist picnic. You have to take your own sandwiches, because nobody will have made any.

  4. Pedantic Grammar Police

    The argument that the feds used to extend federal control far beyond what the constitution permits (in Gonzales v. Raich and elsewhere) is bullshit, but similar to the “earth centered universe” theory that was only abandoned by the Catholic church in 1991, it has been blessed by the relevant authority and is therefore infallible.

  5. Justin

    I’ve always thought one of the best anti-SSM arguments involved marijuana. Notice how “we voted” is perfectly acceptable when it comes to arguing for the feds to stay out of states that legalized marijuana for medical and/or recreational use, but when 2/3 of the country voted to define marriage as the union of a man and woman, all of a sudden we need the federal government vis-a-vis the SCOTUS to issue a directive to the entire nation, millions of voters be damned.

    The Supremacy Clause in the US Constitution states the laws of the federal government supercede those of the states. Perhaps the next time Democrats get a Congressional majority, they’ll use their mandate to decriminalize marijuana — or at least stipulate states have the right to do so — instead of spending their entire capital questioning Trump’s sanity and arguing for impeachment.

    1. SHG Post author

      You mixed apples and Chevy’s, and did so poorly. The Equal Protection Clause, which was the basis for the Supreme Court’s decision in Obergefell, has nothing to do with popular votes. It’s quite the opposite.

  6. Pithy the Fool

    So the memo came down from Jeff Sessions:
    There’s a Federal Law for posession,
    So cease and desist,
    with your reefer and spliffs,
    If you wish to be free then… Secession.

  7. Jake

    Session’s statements did create a nice window to get into the green rush on the stock market at reduced prices.

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