New federal weed policy could snuff out Delaware legalization bill

The Trump administration may have dealt a serious blow to Delaware's legal marijuana movement just as it was picking up steam.

Attorney General Jeff Sessions on Thursday appeared to give U.S. prosecutors a green light to begin aggressively enforcing federal marijuana laws – even in states where pot is legal.

The move could clear the way for federal law enforcement agencies to charge people with marijuana crimes regardless of whether state law allows the drug to be used for medical or recreational purposes.

A White House spokeswoman said President Trump supports the action. On the campaign trail, he said marijuana legalization is an issue best left up to the states.

The new policy instantly created confusion about the status of the nation’s existing, multi-million-dollar legal marijuana industry, along with doubts about Delaware’s ability to adopt new legislation aimed at allowing the use and sale of cannabis.

“I haven’t seen what the Attorney General has put out yet but I think this could end up in some lawsuits,” said state Rep. Helene Keeley, D-Wilmington, who co-sponsored both Delaware’s medical marijuana law and a bill to legalize recreational marijuana here.

“I would like to hear from the governors and legislators in states that have already legalized marijuana,” she said. “Revenue from cannabis sales is already built into their budgets.”

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U.S. Sen. Corey Gardner, R-Colo., joined politicians from other states where marijuana is legal in lambasting Sessions. Gardner specifically accused him of reneging on an earlier promise not to get involved.

“I am prepared to take all steps necessary, including holding DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation,” he wrote on Twitter.

Sessions, who has long signaled his disagreement with the previous administration’s stance, said he is sending a one-page memo to federal prosecutors across the country outlining the change.

The new policy reverses a 2013 decision by the Obama administration that protected legalization efforts from federal intervention so long as states took steps to keep the drug out of the hands of children and prevented it from crossing state lines, among other measures.

Known as the Cole Memo, that policy was adopted after Delaware and 17 other states had already passed laws legalizing the use of marijuana to treat patients suffering from certain medical conditions. Today, 29 states have some form of medical marijuana program.

Eight other states and the District of Columbia have since legalized marijuana for recreational use, including California where cannabis sales began on Jan. 1. A bill to make Delaware the ninth state to legalize marijuana was passed by a House committee last spring and could come up for a vote by the full body this year.

Senior Justice officials said the previous administration’s position had provided a “de-facto safe haven” for the now thriving weed industry

“The previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission,” Sessions said in a three-paragraph release. “Today’s memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”

Sessions’ new policy will let U.S. attorneys across the country decide what kinds of federal resources to devote to marijuana enforcement based on what they see as priorities in their districts. But officials could not say Thursday what the ultimate impact will be on the legal industry or whether it will lead to more marijuana prosecutions.

The discretion being provided to federal prosecutors creates a particularly high level of uncertainty in Delaware.

Acting U.S. District Attorney David Weiss was nominated to the post by Trump in November but has yet to be confirmed by the U.S. Senate. He previously served as assistant to his predecessor Democrat Charles Oberly, who was among 45 Obama-appointed U.S. attorneys fired by Sessions last year.

"The U.S. Attorney's Office for the District of Delaware will utilize the long-established prosecutorial principles to carry out the shared commitment with Justice Department to combat violent crime and the scourge of drug offenses plaguing our community," Weiss said in an email.

Statements like that could have a chilling effect on state legislators who are still on the fence about HB110 – Delaware’s recreational marijuana bill.

Also known as the Delaware Marijuana Control Act, the measure would allow people 21 and older to purchase up to an ounce of marijuana from dozens of stores authorized to sell the drug. The legislation also would authorize the creation of a marijuana industry that would include cultivation facilities, testing companies, and manufacturing businesses.

A legislative task force has been studying how that industry might operate since September and is now in the process of crafting a final report.

As currently written, HB110 would require a two-thirds majority in both houses of the General Assembly – an unusually high bar that could be insurmountable if legislators believe it will only result in federal prosecution.

“Delaware was already looking at several uncertainties with legal marijuana and this memo is yet another strong reason to stop and wait until we have more data on all the implications,” said Cathy Rossi of AAA Mid-Atlantic, the leading voice of opposition to HB110. “From the federal perspective, there have already been several cautionary yellow flags and now I think we’re seeing a major red flag going up.”

Proponents of legalized marijuana said Sessions’ memo flies in the face of Republican’s professed support of states’ rights and threatens to increase drug crime.

“This policy contradicts both the will of the voters in several states and the Trump administration’s own pro-business platform,” said Zoe Patchell, executive director of the Delaware Cannabis Advocacy Network. “It takes a safe and lucrative product out of the hands of law-abiding business owners who pay their taxes and employ thousands of people and returns it to the hands of criminals in the black market.”

U.S. Sen. Chris Coons, D-Del., a member of the Senate Judiciary Committee, agreed that prosecuting legal marijuana industries would be a “poor allocation of federal time, money, and manpower that should be focused on more important things, such as combatting crime on our streets.”

Keeley said she believes Sessions’ memo could backfire when it comes to preventing Delaware from legalizing recreational marijuana.

“I think it might provoke some legislators who have an independent spirit and are tired of the federal government telling us what can and cannot do,” she said.

Co-sponsor state Sen. Margaret Rose Henry, D-Wilmington South, also said she is optimistic that Trump administration’s new policy will not sink Delaware’s legalization efforts.

“I think we’ve been very diligent in how we’ve moved this forward and will ultimately end up with a bill that addresses all of the concerns the federal government might have,” she said.

Contact reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.