The Cole Memo: what it means for the future of cannabis

Written By: Jen Neville
December 10, 2017

Free On-Demand Webinar: The Future of the Cole Memo

James Cole is an American attorney who served as the U.S. Deputy Attorney General during the Obama administration. He is now distinguished in the cannabis sector for his two short memoranda that allow legal cannabis states to run without interference from federal drug-law enforcement. The first memo, written in 2011, sought to protect ill patients and their caregivers. Cole commented that federal drug law enforcement for the matter would “not be an efficient use of federal resources.”

In 2013, Cole published the 2013 Cole Memoradum, which was written as a response to the legalizations granted in Colorado and Washington at that time. Cole listed out eight priorities that the federal government should focus on instead of cracking down on cannabis businesses in legal states. The list included preventing sales to minors and focusing federal efforts on illegal drug distribution.

Cole recently spoke publicly about his memo since leaving the White House in May. Cole, who is now a partner at the Washington law firm Sidley Austin LLP, was a panelist at the New York City Bar Association’s event, “The Trump Administration and Drug Policy.” Paul Rienzo, best known for hosting “TrumpWatch” on WBAI-FM, was the moderator for the panel. Below are Cole’s Q&A:

Refresh us as to what the memorandum was about and what were the situations that brought it to to be and and where we’re going to go from here?

When we dealt with it in the Justice Department, one of the things that really struck us was that there were two problems: a health problem and a law-enforcement problem. You have to make sure that you separate those two in order to try to deal with this in any sort of successful way.

In 2010, one-third of the Justice Department’s $27 billion budget was for the Bureau of Prisons. The vast majority of people in prison are there for drugs. Some of them in for drugs make their living killing people; they’re dangerous and present a serious public safety issue. But a lot of people are in there for nonviolent minor drug offenses, sometimes first-time offenses.

We were dealing with drug addiction as a crime, when it’s a health issue. When you have people who are addicted, this may drive them to be a part of drug organization just to feed their own addiction in one way or another. You start asking yourself, “Why are these people in the criminal-justice system? What brought them there? Are they bad, are they evil, are they killing people? Or are they ill, and they need some sort of treatment instead of punishment?”

Literally, the day after Colorado and Washington passed recreational-marijuana initiatives in 2012, [Washington Gov.] Christine Gregoire told me, “Well, this is what’s going on in our state. Are you now going to prosecute our simple-possession cases?” I said, “Governor, I don’t prosecute my simple-possession cases. Why should I prosecute your simple-possession cases? Nobody does that, it’s not worth it.”

How did medical marijuana, which was legal in a number of states at the time, fit into the equation?

Their regulatory systems weren’t very good, robust or careful. They were very permissive and not really achieving the results they were aiming for. If you pre-empt the regulatory scheme, people are going to get it from the cartels. Now you’re feeding a lot of money to the cartels, which is not a good idea. The marijuana the cartels send up into our country is filled with pesticides. You don’t know what’s in it or how it’s grown. What’s the sense in trying to take down the regulatory scheme, when we could basically wag our finger at the states and say you need to actually have a good regulatory scheme, and here are the eight things we think are public-safety issues that, if you take care of them, then we’re not going to prosecute marijuana cases in your state. And in the same breath, we’re saying you can make a whole lot of tax revenue off this, and really benefit your state in a bunch of ways. All the money that would have gone into the cartels will go into the state tax coffers.

So this is the genesis of how we came up with this policy. It wasn’t that we were saying, “Boy, isn’t marijuana great? We want to just get rid of all the marijuana laws in place.” It wasn’t that. It was very much an analysis of “what’s the public-safety interest?” How can we make our communities safer now that we’re in this dilemma? This had a great deal to do with how to put this policy into effect.

Did you have to kind of bring people to your side? What kind of push back did you receive?

Right after Colorado and Washington passed their resolutions, I got called up to the Hill often by politicians, some saying you have to stop enforcing the law, and others saying you have to really enforce the law against marijuana now. And I would look at them and say, “Last I checked you were the Congress. You pass a law and we enforce it.

Give me the directions by passing a law.” They didn’t. The DEA didn’t like it, but that was probably the biggest pushback we got.

As you understand it, so long as an individual or company is abiding by the state regulatory scheme, is the Department of Justice essentially or theoretically not going to occur under the current policy?

Under the current policy, that is correct, if they are in compliance. My memo starts out by saying that this is illegal under federal law. We’re not changing that, but it’s saying if you comply with and do not violate these public-safety issues we have, we’re not going to do anything about it, unless there is some other compelling interest that we can’t even think of.

Do you expect Attorney General Jeff Sessions will scrap the 2013 memo?

I know there’s been talk about this, whether or not it’s going to be withdrawn. I don’t know, but I’ve been hearing some things from Attorney Jeff Sessions that indicate that he thinks it’s not that far away from good policy. There’s a lot of valuable stuff in the memo.

In California, some dispensaries have begun selling recreationally to people without medical recommendations. Is this where federal enforcement is going to happen?

That’s very difficult to predict. That kind of trade should be left to the state of California. If I wanted to stop this, I’d probably go after some big business that’s supporting the marijuana industry, and shut it down. This will make every other business that’s supporting the marijuana industry afraid, as opposed to going after the marijuana industry. You stop the business that’s part of the infrastructure that you know gives them the ATM machines that are there that are not connected to a bank, that gives them the packaging, that gives them the scientific equipment they need for growing—the lights, the fertilizer, whatever it is. You go after them and that becomes the thing that shuts the industry down.

Many cannabis businesses are cash-based because they can’t use banks. The federal government has the power to disrupt legal cannabis by preventing the exchange of money. How do you address that?

The second Cole Memo says you can bank with this money, and if your clients who you’re banking for are in compliance with the Cole Memo, you will not be charged with money-laundering. There’s another public-safety issue out there when you’re dealing with that much cash, and that public-safety issue is someone is going to try and steal it from you, and most of the time they’re going to use a weapon to do it.


In Colorado, while juvenile marijuana use is dropping, there’s actually been an increase in prosecution of youth of color. How do you think regulatory changes can be made to attempt to reduce these racial biases in law enforcement?

I’m not sure it’s a regulatory change; I think it’s a societal change. It’s about who your public officials are, and who’s being given the discretion in those prosecutors’ offices to decide what the policies are. The prosecutor gets to decide who gets prosecuted and who doesn’t. Even if someone committed a crime, the prosecutor gets to say, “I will or will not prosecute you.” There’s nobody who can second-guess that, other than the voters, by voting the prosecutor out.

As a Schedule I drug, marijuana has no accepted medicinal value under federal law, yet many sick children have experienced successful recovery with cannabidiol. How do you reconcile this?

Rescheduling is a very complicated issue, because it can be done one of two ways: either through the FDA and the DEA, which have been delegated the Attorney General’s power to reschedule, or through legislation in Congress. The DEA and Attorney General can do a study that talks about a), is there any known medical use? and b), what is the potential for abuse? Because it’s a Schedule I drug, the ability to test it is incredibly difficult.

When I was at the Justice Department, a lot of parents asked us why we wouldn’t let rescheduling happen. Obviously, it’s a tough issue. Do you want to test a drug on your child that has not been approved by the FDA? These parents are desperate, there’s nothing else that even comes close to giving relief to their children, so I think we owe it to them to try to get some actual testing of this drug done, to find out if it’s going to help somebody. Let’s put it through the normal FDA process and get it out, so it can help people.

The President has no power to re-schedule drugs?

As I recall under the statute, the president doesn’t have the authority to re-schedule. The Attorney General does and has delegated that authority to the DEA and the FDA.

The President can’t instruct the Attorney General to reschedule a drug?

No, the President should not be instructing the Attorney General.

Can you speak briefly about the Rohrabacher-Blumenauer Amendment, which protects patients and businesses in states where medical marijuana is legal?

There’s a little bit of controversy about what it means. It’s a rider on the Justice Department’s appropriations bill and it’s been on for several years now. It says none of the money appropriated to the Justice Department can be used [to enforce federal laws against marijuana] in states that have passed medical-marijuana laws. The Justice Department currently contends all that means is the state could take action to implement their laws, while others have said, “No, it means if someone’s using medical marijuana you can’t prosecute them.” That’s the controversy. At this point, to me, why are we really worried about that so much if it’s a simple-possession case for someone who’s using medical marijuana? Who cares? It doesn’t seem to me to be an all-encompassing or a compelling law-enforcement point of view.

Sessions has made comments such as “I used to like the Ku Klux Klan until I learned that they smoke marijuana,” and is telling his prosecutors that they should go for the maximum sentence instead of minimum sentences. How seriously should we take his comments?

You can’t always take a quip as policy. Lots of people make quips, and what ends up coming out in policy, hopefully, is something that’s done through some thoughtful discussion. The criminal-justice system is something different. We prosecute people, charge them with the most serious offense we can and give them the most serious sentence we can get. This was something that Attorney General [Eric] Holder and I tried to pull back on by saying, “No, let’s be thoughtful about this.” Some people should go to jail for a long time, others should not. Let’s give the discretion back to our prosecutors, who are on the street and know better what’s going on, and allow them to have the discretion that only they can have because they’re familiar with the cases. I can’t sit in Washington and say, “Here’s a specific case in New York City, do this to it.”


Free On-Demand Webinar: The Future of the Cole Memo

The Cole Memorandum suggested that prosecutors and law enforcement should limit the expenditure of federal resources in prosecuting individuals whose actions are in compliance with state marijuana laws. The Cole Memo represented a major shift in drug enforcement, and after its issuance, federal marijuana prosecutions declined in states that had authorized certain marijuana activity.

Despite acknowledging the existence of the Cole Memo, Attorney General Sessions earlier this year issued a memo of his own, directing federal prosecutors to charge and pursue the most serious, readily provable drug offenses. Under Sessions’ program, which rolls back Obama-era policies, if prosecutors want to pursue lesser charges for low-level drug crimes, they first need to obtain multiple layers of approvals from different authorities.

This webinar hosted by Infocast will be exploring:

  • The future of the Cole Memo and how Attorney General Sessions views the Department of Justice’s role in enforcing federal drug laws;
  • How cannabis regulation fits into the Trump administration’s priorities and agenda, and offer predictions for the future;
  • Current federal legislative efforts and proposals, and which, if any, could succeed; and
  • How states are responding to federal enforcement policies and efforts.

Presenter:
Jonathan A. Havens
Associate
SAUL EWING ARNSTEIN & LEHR LLP


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