As Trump's AG, how might Sessions crack down on recreational marijuana?

After voters approved eight state marijuana ballot initiatives on Election Day, more than half of the 50 states now have laws that permit the drug to be used for medical purposes – and eight now allow it for recreation.

But federal law continues to ban the substance nationwide, and the announcement that US Sen. Jeff Sessions of Alabama is President-elect Donald Trump's nominee for attorney general, could bring the marijuana legalization movement to a screeching halt. The choice of Mr. Sessions is seen by some analysts as a signal that conservative social values could now take precedence over states rights – especially since recreational pot dispensaries are in mostly "blue" Democratic states.

Pro-marijuana state laws have blossomed in recent years under a lax federal enforcement policy. But Sessions, who served previously as attorney general of his home state, and whom Trump described as "a world-class legal mind," has long been a vocal opponent of marijuana legalization, raising the possibility that he could lead a charge in asserting federal control over drug policy.

"We all wondered whether the Trump presidency would be 'states rights' or 'law and order' when it comes to drugs," Kevin Sabet, the president of anti-legalization advocacy group Smart Approaches to Marijuana, tells The Christian Science Monitor. "The Sessions pick makes many of us think it will be the latter."

Dr. Sabet, who served as a White House drug policy staffer under President Bill Clinton and President George W. Bush, as well as during President Obama's first term, says Sessions has been "the single biggest opponent to legalization in the US Senate." Even so, it is too soon to tell how and how hard Sessions would push back against state pot laws, especially since marijuana has not been a priority for the incoming Trump administration, Sabet adds.

Sessions made waves in April when he said during a Senate hearing that lawmakers and other government leaders need to send a clear message that marijuana is dangerous and that "good people don't smoke marijuana," as The Washington Post reported. Ethan Nadelmann, the executive director of the pro-legalization Drug Policy Alliance, critiqued Sessions as a relic of failed tough-on-crime policies of decades past, calling him "a drug war dinosaur."

The federal government classifies marijuana as a Schedule I drug, alongside heroin, as a substance without valid medicinal applications, and with a high potential for abuse. The Obama administration has opposed reclassifying it, but politicians have warmed up to discussing decriminalization as public opinion has shifted in favor of legal marijuana. Recent polling by Gallup and Pew Research Center found that a majority of Americans favor legalization, with support highest among younger generations, as the Monitor reported earlier this month:

As public attitudes have softened toward marijuana legalization, politicians have been able to be more forthcoming about the issue, says Zev Yaroslavsky, director of the Los Angeles Initiative at University of California, Los Angeles, and a longtime politician in the city.  

"I think it's an honest debate," Mr. Yaroslavsky tells The Christian Science Monitor. "Society has moved well beyond the period of time when discussion of legalizing marijuana or using it was so taboo that it could pose an existential threat to a politician's career. Not anymore. Now, you can have honest points of view."

Despite Sessions' past statements on the topic, there are numerous paths he could take as attorney general, from reaffirming policies devised by the Obama administration, to cracking down (with Congressional consent), or landing somewhere in between. 

Scenario 1: Keep the Cole memo

In 2013, US Deputy Attorney General James Cole drafted a memo to federal prosecutors nationwide with instructions on how to pursue enforcement of the Controlled Substances Act (CSA), which sets federal drug policy, in light of state ballot initiatives legalizing marijuana. The memo sought to prioritize and focus federal resources on addressing big-picture problems, without getting caught up prosecuting pot possession in states with regulatory and enforcement systems of their own.

"Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws," Mr. Cole wrote.

Trump suggested in October that he would favor keeping marijuana low on the list of federal priorities.

"In terms of marijuana and legalization, I think that should be a state issue, state-by-state," he said at a rally at a casino near Reno, Nev., as the Post reported.

But if Trump were to take a hands-off approach within his own administration, perhaps Sessions would be granted more leeway to pursue a harder line.

Scenario 2: Complete crackdown

Congress, which controls the budget, prohibited the US Department of Justice from spending any money to prosecute under federal marijuana laws a defendant who had complied with state marijuana laws. That prompted the Ninth Circuit Court of Appeals to rule in August that the DOJ cannot proceed with 10 federal prosecutions in two states unless and until it proves that the defendants violated state law.

Judge Diarmuid O'Scannlain added in a footnote, however, that the ruling should not be seen as a green light for marijuana nationwide. The appropriations bill deprives the DOJ of funding, but it does not offer any immunity from prosecution.

"Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime," Judge O'Scannlain wrote. "The federal government can prosecute such offenses for up to five years after they occur."

Congress could restore funding at any point. Before the statute of limitations expires, the DOJ could prosecute anyone who had violated federal marijuana laws while it lacked funding authority to pursue them, O'Scannlain wrote, adding that "a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses."

With the consent of Congress – both houses of which will be under the control of Republican majorities – Sessions could pursue a hard-nosed anti-marijuana agenda.

Even without going after individual prosecutions, Sessions could send a letter to governors in states that have legalized marijuana to warn them that the licenses they issued to cannabis companies violate federal law and should be revoked to bring their states into compliance within 90 days, for instance, Sabet says.

Whatever route the next attorney general takes, letting marijuana policy revert to a states' rights issue would be "the worst-case scenario" because drugs sold legally in one state can cause problems in neighboring states where they are illegal, Sabet adds, arguing in favor of consistent drug policies at the federal level.

Scenario 3: Middle of the road

Rather than rely on the Cole Memo or pursue a full-fledged crackdown, Sessions could pursue a more moderate agenda. Drug policy analyst Jonathan Caulkins said the Trump administration could announce national standards defining best practices for the marijuana industry, and insist that the companies comply to avoid enforcement under existing federal law.

"For example, Sessions could effectively ban marijuana products that are combined with alcohol or tobacco, or which are packaged to look like candies and sodas. Aggressive marketing tactics, such as giving away free grams to entice new customers could also be blocked," Mr. Caulkins said, as the Post's Keith Humphreys reported.

"Few people expect Sessions to be that Solomonic," Mr. Humphreys noted, "but then again not many people expected Nixon to go to China either."

Sabet says this middle-of-the-road approach would be better than the current enforcement regime under the Obama administration, though it would still fall short of fully enforcing federal law. It would be better, he says, for Congress to settle these issues by clearly defining a nationwide policy that it is willing to fund the executive branch to enforce.

Keeping with the theme of 2016, of course, the Trump administration's course of action could be something almost entirely unanticipated by political observers.

Taking a wait-and-see approach

After two years of co-owning their dispensary Home Grown Apothecary in Portland, Ore., Randa Shahin and her husband secured a license from the state last month to begin selling not only medical marijuana but recreational cannabis as well.

"Oregon has been great about the mom-and-pop-style industry," Ms. Shahin tells the Monitor, noting that she has cultivated a good working relationship with local policymakers as they figure out how to regulate the still-nascent legal industry.

While there is some concern among local cannabis companies, Shahin says she's taking a wait-and-see approach to the Sessions nomination, especially since the US Senate has not yet confirmed his role as attorney general and Americans do not yet know how Sessions might approach marijuana.

"It’s really hard to say because Trump has this whole perspective about how the state should govern themselves, but then he’s putting this person in office that could potentially increase federal raids," Shahin says. "But at the same time, would Congress allow that as a use of taxpayer dollars? I don’t know."

Shahin says she hopes other elected officials challenge Sessions to avoid taking too extreme of an approach.

In Colorado, which was the first state to have legal sales of cannabis, the response is similarly cautious. Andrew Freedman, the state's so-called marijuana czar, said the future of the legal industry depends on Trump's priorities, as The Cannabist reported.

"Beyond that," Mr. Freedman said, "I think we would hope to be part of a conversation so that any movement on the federal level doesn't risk public health, public safety and black market concerns in the state."