Editorial: US attorney disappoints on legal marijuana

Wednesday, January 10, 2018

The new U.S. attorney in Massachusetts, Andrew Lelling, is clearly out of tune with the state’s voters and top officials in pronouncing Monday that he will not “provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”

Lelling’s statement further clouds the status for users, growers and retailers of marijuana in Massachusetts after U.S. Attorney General Jeff Sessions last week opened the door for more aggressive federal prosecutions when he rescinded guidelines issued by the Obama administration in 2013 discouraging such action in states where marijuana is legal. Sessions’ action invites a patchwork approach to marijuana cases depending on the whim of individual federal prosecutors.

Sessions, a longtime opponent of pot who has compared its use to heroin, told U.S. attorneys that it is now up to them to decide how to enforce federal laws prohibiting marijuana, while considering “the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

The federal about-face drew strong bipartisan criticism in Massachusetts, where recreational marijuana was approved by 53.6 percent of the voters in November 2016. A spokesman for Republican Gov. Charlie Baker said the governor would assess the impact of Sessions’ “wrong decision.”

Democratic Attorney General Maura Healey said Thursday’s “announcement from Washington inexplicably directs federal law enforcement resources away from combating an opioid epidemic that is ravaging our communities in order to focus on legalized marijuana.”

Lelling, who took office Dec. 21 after his appointment by President Donald Trump, initially said Thursday that while “medical studies confirm that marijuana is in fact a dangerous drug, and it is illegal under federal law,” he would exercise “prosecutorial discretion” in all cases and that he would discuss enforcement of the drug with state and local officials.

After sponsors of the marijuana legalization ballot question asked for clarification about how Lelling plans to proceed, he issued Monday’s tougher statement. “I understand that there are people and groups looking for additional guidance from this office about its approach to enforcing federal laws criminalizing marijuana cultivation and trafficking. … This is a straightforward rule of law issue. Congress has unambiguously made it a federal crime to cultivate, distribute and/or to possess marijuana. … Deciding, in advance, to immunize a certain category of actors from federal prosecution would be to effectively amend the laws Congress has already passed, and that I will not do.”

Lelling’s position is particularly disappointing when compared to the response by the interim U.S. attorney in Colorado, where marijuana has been legal since 2012. Bob Troyer, who Sessions named to the temporary position in November, said he would not change his position to more aggressively pursue marijuana prosecutions and instead will continue to focus on “identifying and prosecuting those who create the greatest safety threats to our communities around the state.”

The sale of recreational marijuana is legal in the District of Columbia and six states, including California, which became the latest on Jan. 1. Massachusetts is scheduled to become the seventh in July, after a five-member Cannabis Control Commission issues rules governing retail pot shops. Its members said the change in federal policy had not altered their mission “to move forward with our process to establish and implement sensible regulations for this emerging industry in Massachusetts.”

Until those regulations are approved and businesses are granted licenses to grow or sell marijuana, its sale remains illegal. However, it already is legal in Massachusetts for adults 21 and older to have up to an ounce of marijuana for recreational purposes and to grow up to 12 pot plants per household.

The use of marijuana for medicinal purposes, which was approved by Massachusetts voters in 2012, is less likely to be threatened because of a congressional amendment preventing the Justice Department from using its resources to prosecute participants in those programs. However, that protection must be renewed with each federal spending bill, and Justice Department officials have not ruled out the possibility of prosecutions related to medical marijuana.

Sessions and Lelling are focusing on the wrong drug when they should be redoubling their efforts against more potent street drugs, such as heroin, as well as the abuse of prescription opioids and benzodiazepines that are fueling the nation’s overdose epidemic.

We hope that Lelling, at least, reconsiders his position after consulting with enlightened law enforcement officials throughout Massachusetts.