By Carolyn Witkus and
Jon Eric Stuebner
As the last election has shown, more and more states are legalizing marijuana for both medical and recreational purposes. Despite indications from the current administration regarding the legalization of marijuana, this trend is likely to continue as additional states observe the degree of success to which legalization is implemented and the potential tax revenue that becomes available. Colorado saw nearly $1 billion in marijuana sales in 2015.
However, legalization brings unique legal and legislative challenges, particularly because of the tension between federal law, which still places marijuana in the same category of controlled substances as cocaine and heroin, and state laws legalizing marijuana. Despite this tension, the marijuana industry has been recognized as one of the fastest growing industries in the United States.
Regardless of marijuana’s status under federal law, the previous attorney general set forth that the Department of Justice will use discretion in determining prosecutorial action for states that have legalized marijuana under state law. In 2013, the attorney general issued a memorandum providing guidance regarding marijuana enforcement. In the memo, he identifies a number of enforcement priorities with regard to marijuana.
So long as states develop comprehensive legislation to address these enforcement priorities and carefully regulate the cultivation and distribution of marijuana according to the state’s enacted legislation, the Department of Justice will exercise prosecutorial discretion when deciding whether to enforce federal law as it pertains to marijuana.
As such, states that have legalized marijuana have made every effort to create, regulate and enforce comprehensive marijuana legislative schemes to avoid the ire of the Department of Justice. Although the current attorney general has given indication that the prosecutorial discretion implemented by the prior administration may change, no further action has been taken in regard to states that have legalized medical or recreational marijuana at this time.