Scanning the daily headlines for a minute there on New Year’s Day, it looked like the biggest cannabis issues facing California in 2018 would center on some of the unsettled areas of policy that attended the new law that legalized the sale and purchase of recreational pot in the country’s largest and most diverse state.
Full legalization, which occurred after a rousing and affirming vote by Californians via Proposition 64 in 2016, was a moment decades in the making. Possessing up to an ounce of cannabis has been legal in the state since last January. As of New Year’s Day 2018, the new day had indeed fully dawned.
The next-day headlines spoke of long lines at places like Peace in Medicine in Sebastopol; they spoke of a cannabis-consuming populace coming out of the shadows, surprising for the number of elderly imbibers of the health-enhancing plant; and they hinted at a growing pro-pot bias even among non-users beginning to feel that a bush that springs from God’s green earth ought to be liberated from the grips of a self-defeating federal drug law that bans it outright.
The moment of full legalization in California evoked the staying power, and the suasion power, of the classic cannabis-freedom tome, The Emperor Wears No Clothes. The book came out during the “Just Say No” days of 1985 and underscored the cultural history of hemp and cannabis and their suppression in the United States. It’s a book that’s often cited as the jump-off point for a decades-long push for cannabis access as a civil right. The Emperor Wears No Clothes was and remains the major printed-matter driver for cannabis-legalization efforts in this country (sorry, it wasn’t those Cheech and Chong movies).
So on New Year’s Day, who could not take a moment to marvel at the somewhat ironic fact that, just as a president was at his most wretchedly naked and exposed—thanks to a blistering new book, Fire and Fury, from journalist Michael Wolff—the sixth largest economy in the world had just thrown cannabis into its commerce mix with very little actual fuss.
The naked-truth moment signaling cannabis comeuppance and general acceptance was not to last, as we all now know. On Jan. 4, in a move that was shocking, while not surprising at all (a wearying hallmark of the current administration), Attorney General Jefferson Sessions stepped in and rescinded the Cole Memo.
The memorandum, undertaken under President Barack Obama and former Deputy U.S. Attorney General James Cole, eased the way for states like California to enact legal weed regimes without fear of a federal crackdown on peaceful pot people and their plants and extracts. It sought to address a looming schizophrenia between states’ rights under the 10th Amendment of the Constitution, and a Federal Controlled Substances Act that equates cannabis with heroin and declares it has no medical value whatsoever. It also sought to highlight that the feds would still take an abiding interest in drug cartels and international drug trafficking, as it directed U.S. Attorneys to focus its prosecutorial discretion in that area and not work to stymie new state laws that legalized or decriminalized pot.
The Sessions pushback on legal pot put the overall health and wellness of California’s landmark Proposition 64 into question, and with it, the health and wellness of the state’s millions of cannabis consumers, recreational and medical alike.
As the month unfolds, nothing much has happened yet to amplify the Sessions announcement into on-the-ground action, but the tone and tenor of the news reports about cannabis at once shifted to consider the Sessions move and its potential implications. All eyes are now on the four U.S. Attorney’s offices in California, says Ellen Komp, deputy director of Cal NORML (National Organization for the Reform of Marijuana Laws), who adds that the Cole Memo was a highly useful guide to state policymakers as they set out to create the new regulations that animate the state’s legalization regime. The upshot is that future states considering legalization won’t have a Cole Memo to look to for sanctioned guidance from the DOJ.
Now, says Komp, attention shifts to the U.S attorneys who occupy or will occupy Department of Justice prosecutors’ chairs in the state. One key post is in flux. Just as Sessions was announcing the rescinding of the Cole Memo, the Obama-appointed U.S. Attorney for Northern California, Brian Stretch, announced he was stepping down to join the national law firm of Sidley Austin.
Pro-pot activists and state leaders were quick to lash out at Sessions, including California Attorney General Xavier Becerra, who pledged to fight the anti-pot push from the Trump White House. In a statement, Lori Ajax, chief of California’s Bureau of Cannabis Control, said her office was conferring with Becerra and other states as a new bureaucracy now tangles with a new wrinkle from the feds.
“We expect the federal government to respect the rights of states and the votes of millions of people across America, and if they won’t, Congress should act,” Ajax says. “Regardless, we’ll continue to move forward with the state’s regulatory processes covering both medicinal and adult-use cannabis consistent with the will of California’s voters, while defending our state’s laws to the fullest extent.”
Republicans in legalized states, such as Sen. Cory Gardner of Colorado, also vowed to fight the Sessions move which would undo, in that state, a legalization regime that’s brought in billions in new revenues—while not delivering, as has been widely reported, on opponents’ insistence that legal weed would lead to a spike in non-adult use.
As the news of Sessions’ slap-down of the Cole Memorandum seeped out, progressive military veterans chimed in across social media to express their dismay over the lack of empathy for struggling vets, many of whom struggle with post-traumatic stress disorder and suicidal depression after their service. In recent years, cannabis has gained therapeutic acceptance among veterans and their caregivers for its various health benefits. The U.S. Department of Veterans Affairs has itself been slow to follow, but did announce a new policy in December that allows VA doctors to at least talk about cannabis therapy, even if they can’t sanction it.
“It’s up to the veteran to bring it up,” says Aaron Augustis of the new policy at the VA. Augustis founded the North Bay–based Veterans Cannabis Group in 2016 and has been pressuring the VA to embrace cannabis therapies ever since. At the VCG, the emphasis is on “getting healthy, not high,” and the nonprofit has been a leading advocate for cannabis therapies for veterans. On the group’s website, Augustis, its Marin-based founder and a U.S. Army combat veteran stresses that “We do not advocate cannabis as a cure-all, but as a medicinal tool that should be incorporated with other healthy tools and lifestyle choices.”
Reflecting on Sessions’ revocation of the Cole Memo, Augustis says he’s glad to be in California, where Gov. Brown and Becerra have pledged to stand up for the state law. “We’re not going to follow the Sessions lead, essentially. But you never know, and it’s kind of scary and disturbing that someone so far away can have such a potential impact on something that we’re doing here.”
To use the vernacular of the infantry, his organization is at the tip of a spear of health and wellness for a community of veterans with outsized rates of PTSD, suicide and addiction to opiates.
Augustis, an Iraq War vet, says that moving forward, he hopes the “U.S. government [will] consider the veterans’ population a little bit more, as having more weight and meaning than the average citizen who has not served in the military.” All returning veterans are or have been federal employees, “who have been entrusted with weapons of mass destruction,” he says, along with providing intelligence up the chain of command, “so we could operate and execute missions and take out the enemy. So I would say to Sessions, ‘Why are you not listening to us now over this battle—the suicides, the opiates, the PTSD—a battle of these different issues?'”
As someone with a service-connected disability, Augustis says he took strong issue with Sessions infamous comment that “good people don’t smoke marijuana.”
“Are you telling me that U.S. military veterans are not good people?”
It was curious that on the eve of the Sessions announcement instead of celebrating legal-weed access for all, pro-pot organizations offered words of caution in the so-called Blaze New World of recreational pot acceptance.
Just as the state was about to enact legalization and thus fulfill a decades-long drive by NORML, the nation’s oldest pro-legalization organization was on Dec. 29 sending out an email warning of the dangers of driving under the influence of cannabis. It seemed kind of a fuddy-duddy move when celebration was in order. But Komp says the organization was concerned about people who might jump in the car to buy some legal weed for the first time, perhaps smoke it, and then get back in the car. Not a good idea.
DUI law was one of the pot policy areas that was perhaps left for another day as California pushed to enact Proposition 64 last year. In hashing out the various and complex intricacies of a legal pot rollout, state leaders did not set a legal threshold for THC intoxication, as has been done in other legal states, including Colorado and Nevada. There’s been a long-standing pushback to setting that threshold from organizations such as NORML.
A useful explainer on the DUI conundrum over the New Year’s weekend that ran in the Los Angeles Times said the state had not set a low threshold because, for one thing, cannabis affects people in various ways, whereas alcohol pretty much gets people drunk and lowers their judgment in equally dangerous ways. Another reason: states like Colorado that do set the threshold have found themselves on the losing end of jury trials brought by the very people they’ve arrested on DUI charges. Those are expensive trials to lose.
Komp says that state guidance on DUIs and drugs is either inadequate or filled with scare tactics. NORML offered advice to bridge any DUI confusion for imbibers, and to maintain health and wellness behind the wheel: ease up on the edibles and be careful when you ingest them; for God’s sake don’t smoke and drive; and if you can’t stand on one foot for 30 seconds without losing your balance, don’t get in the car.
Another concern that popped up after New Year’s in newspapers writing on the California initiative was whether the state would be able to fully leverage its new cannabis tax regime to achieve a maximally health revenue stream, in light of an expected rush-to-dispensaries push by liberated recreational users. Medical-cannabis purchases are not subject to the state sales tax that’s levied on recreational cannabis.
The Sessions moved also highlighted the fraught health and wellness of our nation’s judicial system under an administration that has taken a less than friendly posture toward the rule of law and the role of the courts in meting out justice.
That concern just got a whole lot more localized with the abrupt departure of U.S. Attorney Stretch. His exit was curious for its timing and telling for its implication. As the deeply Republican Modesto Bee pointed out last week from the heart of the wholesome Central Valley, “Stretch’s decision allows Sessions to appoint an interim U.S. attorney just as he announced he was rescinding an Obama-era policy that paved the way for legalized marijuana to flourish in California and other states.”
Alaska, Colorado, Maine, Massachusetts, Nevada, Washington and Oregon have all made the leap in recent years. Last week, Lisa Murkowski, the Republican senator of Alaska, joined with Gardner in blasting the Sessions move as unhealthy for her state.
Harsh pushback to Sessions also arrived from states that don’t currently have a recreational use law but do allow medical cannabis. The New York–based Cannabis Cultural Association (CCA) sued Sessions last week over his rescinding of the Cole Memo. The nonprofit works with low-income and underrepresented communities to participate in the legal weed industry with “an emphasis on criminal justice reform, access to medical cannabis and adult-use legalization.”
Cannabis Cultural Association co-founder Nelson Guerrero blew the doors open on the implications of the Sessions move: “Rescinding the Cole Memorandum threatens patients’ access to life-saving medication and thwarts restoration of communities most impacted by cannabis prohibition, while jeopardizing the careers of over 150,000 full-time cannabis-industry employees and the collection of billions of dollars in valuable tax revenues.” The CCA is also committed to ending mass incarceration, whereas law enforcement has pledged to do its part to keep the jails and prisons full of nonviolent pot offenders.
Following the Sessions announcement, the National Sheriffs’ Association, which represents some 20,000 sheriffs across the country, issued its own statement of support for the move as it said confusion and a Colorado spike in DUI drug arrests had influenced its view: “We applaud the Attorney General for this action today that brings clarity on enforcement of the law by rescinding a confusing policy brought on by the previous administration that hindered law enforcement. This will allow sheriffs to carry out their mission of upholding the rule of law and keeping their communities safe.”
The statement was sent to a Sonoma County Sheriff’s Office spokesman to gauge his view of the Sessions move. Speaking on behalf of Sheriff Rob Giordano, Sgt. Spencer Crum noted that Giordano’s “understanding [is] that Sessions is letting the attorneys general in each district decide how vigorously they want to prosecute federal law,” and added that “the sheriff would appreciate some attempt to rectify the conflict between state and federal law. We will continue to enforce state law, which allows for personal use of marijuana. Driving under the influence of marijuana will continue to be taken seriously. This federal decision doesn’t change anything we do in regards to marijuana enforcement.”
Meanwhile, legalization advocates remain in a wait-and-see mode after the Sessions’ move and hope that Becerra and Ajax will use their offices to ensure a proper and legal rollout of the new law. NORML’s Komp says she was encouraged by their respective statements that highlighted the necessity of Proposition 64 participants to be in compliance with state law. That, she offered, may make it less likely for a federal crackdown to ensue.
“It remains to be seen,” she says. “A lot will be at the discretion of the four district attorneys.”
On Monday, the DOJ announced that the First Assistant U.S. Attorney under Stretch, Alex G. Tse, was named acting U.S. Attorney for the Northern District.