What does the nomination of US Sen. Jeff Sessions, now likely to be the next US attorney general pending Senate approval, mean for the fast-growing cannabis industry?
Although his past comments about marijuana are, to be kind, “odd,” and give great reason to question his suitability as attorney general, it may be too early for panic by marijuana advocates.
According to a report by Arcview Market Research and New Frontier, the legal US cannabis market will reach nearly $23 billion within four years.
With the latest election results, about 60 percent of Americans now live in states where marijuana is at least partially legally available. And recreational use of marijuana has grown exponentially year-over-year in states where it’s legal.
One reason for the rapid growth has been the Department of Justice’s decision not to enforce federal controlled-substance laws in states where cannabis businesses operate in compliance with local regulations. That may all change.
The attorney general is the country’s top federal prosecutor, setting priorities for the 93 US attorneys across the country that run each local jurisdiction. US attorneys customarily change over with each new administration.
The new US attorneys account for the attorney general’s national priorities when setting their own for their respective jurisdictions. They have the flexibility to target select federal crimes, often assembling interagency task forces for just this purpose.
The billion-dollar question is whether, if approved, Sen. Sessions, and the next class of US attorneys, will seek to put the proverbial genie back in the bottle by targeting the cannabis industry.
From 1981 to 1993, Sessions was US attorney for Alabama’s Southern District. For six years before that, Sessions was an assistant US attorney. During his tenure as a federal prosecutor, Sessions was tough on drug crimes, fully embracing Nancy Reagan’s “War on Drugs.”
His work as a federal prosecutor led President Reagan to nominate him in 1986 for a federal judgeship. A Republican-controlled Senate declined to confirm Sessions, largely due to allegations of racism toward African-Americans.
By all accounts, Sessions remains a steadfast drug warrior. Indeed, just last August, he issued a public statement decrying President Obama’s decision to mass commute the sentences of non-violent drug offenders.
His comments on cannabis are as peculiar as they are foreboding.
At a 2014 Senate Judiciary Committee hearing, Sessions responded to Obama’s statement to The New Yorker that cannabis is less dangerous than alcohol “in terms of its impact on the individual consumer,” by telling then-Attorney General Eric Holder that he found Obama’s comments “stunning” and was “heartbroken” that the President would make such a comment.
Sessions then disputed that cannabis is harmless because “Lady Gaga says she’s addicted to it.” During his failed judicial nomination, a former coworker testified that Sessions said the Ku Klux Klan was an acceptable organization until he learned that its members used marijuana.
Perhaps most tellingly, Sessions, in a Senate hearing in April, expressed nostalgia for the “War on Drugs” philosophy as a federal law enforcement priority:
“I can’t tell you how concerning it is for me, emotionally and personally, to see the possibility that we will reverse the progress that we’ve made… It was the prevention movement that really was so positive, and it led to this decline. The creating of knowledge that this drug is dangerous, it cannot be played with, it is not funny, it’s not something to laugh about, and trying to send that message with clarity, that good people don’t smoke marijuana.”
Sessions’ stance on cannabis is best summed up by that last line: “Good people don’t smoke marijuana.”
Will the federal government dismantle the hundreds of millions of dollars spent creating cannabis infrastructure and destroy an industry that could generate more than $20 billion over the next four years?
As distressing as Sessions’ nomination is for the cannabis industry, the Trump administration and the DoJ will probably not make cannabis a priority.
Cannabis may be playing a states-rights siren song of the sort that Trump’s base loves to hear. The cannabis infrastructure is too far along in many states to be eradicated.
And while the federal government tore up the alcohol infrastructure during Prohibition, the nation learned, the hard way, a valuable lesson that makes dismantling unlikely to be repeated.
There is also a budget preclusion known as the Rohrabacher-Farr Amendment now being litigated as a shield against federal prosecution of strictly compliant cannabis businesses.
Finally, given high-priority concerns such as terrorism, major financial fraud, child pornography, cartel conspiracies involving hard drugs, gang racketeering and firearms trafficking, the US attorneys in major recreational cannabis jurisdictions such as California, Colorado, Washington, Oregon and Nevada are unlikely to view cannabis as a serious public threat.
Sessions’ nomination as America’s top prosecutor is certainly disconcerting to the cannabis industry, as well as for civil rights proponents more generally. But he will face strong winds of change, and ultimately is unlikely to have decision-making authority in the Trump administration over cannabis policy.