‘The Mile High’: A memo makes history

Last month, the Obama Administration announced it would not challenge the Colorado and Washington pot legalization laws, and– for the first time in history–  the federal government outlined a path for commercial, recreational marijuana businesses in the United States.  Make no mistake, this is huge.

Like the medical marijuana-focused 2009 Ogden Memo and the 2011 Cole Memo, this most recent announcement is simply intended to provide guidance to federal prosecutors when deciding which marijuana cases to pursue.  But, unlike previous announcements, the memo explicitly addresses full legalization and clearly outlines eight priority areas the federal government cares about most.  If marijuana businesses, whether medical or recreational, stay within the boundaries of tightly regulated state law and comply with these federal concerns, it suggests they’ll be left alone by the feds.

For Colorado and Washington, with fully legalized marijuana, and others states such as Illinois, Nevada, and New Hampshire that recently passed laws regulating the commercial distribution of medical marijuana, the federal announcement is momentous. The previous Cole Memo signaled to federal prosecutors that even when a marijuana business was in full compliance with state law, the fact that it was large and made money was reason enough to prosecute. Now, just two years later, the Department of Justice has done an impressive turnaround. The most recent letter tells U.S. Attorneys that “prosecutors should not consider the size or commercial nature of a marijuana operation alone” when deciding whether or not to pursue a case.” This approach marks the most significant step forward for marijuana businesses trying to take advantage of the economic excitement surrounding a newly-legal, billion dollar industry.

It’s hard to know what this federal announcement will mean in practice. Federal prosecutors have a large amount of autonomy and the memo doesn’t bind their hands as much as it guides them. Many activists worry that certain federal prosecutors could ignore Attorney General Eric Holder’s directive and continue to criminally charge legally compliant marijuana businesses. This happened throughout Obama’s first term despite the promising 2009 Ogden Memo that told U.S. Attorneys to lay off medical marijuana patients and their caregivers.

One thing is for certain: times are changing. Public opinion around the county is rapidly shifting in favor of legalization and every few months it seems another state passes new marijuana reform legislation. By this time next year, anyone 21 years and older can fly to Colorado and purchase marijuana legally. The state won’t stop you and, for the first time in history, neither will the federal government.