Sessions Hearings Fail to Answer Questions on Cannabis

This week’s confirmation hearings for Sen. Jeff Sessions, President-elect Trump’s pick for attorney general, did little to ease cannabis advocates’ fears that the incoming administration could put state-legal cannabis programs at risk.

Asked by one senator about state cannabis laws, Sessions “gave a wishy-washy non-answer that provides little comfort to medical marijuana patients, state officials, and others,” Bill Piper, senior director of the Drug Policy Alliance’s office of national affairs, said Thursday in a conference call with reporters.

“He was clear that federal law makes possession and distribution a crime and that he would enforce federal law,” added Alison Parker, the US director of Human Rights Watch.

Since the election, the cannabis community has been forced to read tea leaves in an effort to predict how the Trump administration might approach state-legal cannabis. While Trump in the past has professed support for states’ rights and medical marijuana, his nomination of Sessions, a staunch drug war proponent, left many scratching their heads.

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Quizzed this week on the relationships between state cannabis programs and federal law, Sessions played his cards close to his chest.

“One obvious concern is that the United States Congress made the possession of marijuana in every state, and the distribution of it, an illegal act,” he said in response to a question from Sen. Mike Lee (R-Utah). “If that’s something that’s not desired any longer, Congress should pass a law to change the rule.”

As Reason’s Eric Boehm wrote, that answer is technically correct—but it still doesn’t tell us much.

As a matter of basic civics, yes, Sessions is right about all that. Congress should be the ones to decide when marijuana is legal or illegal at the federal level and the Justice Department is supposed to enforce the laws, not make them. That’s hardly a controversial or revealing statement.

Practically, though, Sessions would have tremendous power as attorney general to decide exactly what “enforce laws effectively as we are able” means. Without needing approval from Congress, Sessions could send federal agents to arrest growers, shut down dispensaries, and freeze the bank accounts of marijuana businesses.

For now, a Congressional provision known as the Rohrabacher-Farr amendment prevents federal prosecutors from going after state-legal medical cannabis operations. But that measure is set to expire in April of this year, and its protections currently don’t extend to adult-use programs.

If confirmed, Sessions would oversee the US Department of Justice, setting policies and enforcement priorities for federal prosecutors across the country. The Justice Department also is the parent agency of the Drug Enforcement Administration.

Even if Sessions were to decline to target cannabis nationally, he could sign off on initiatives by federal prosecutors at the state level, such as when former US Attorney General Eric Holder approved a 2011 crackdown on California cannabis businesses.

Such arbitrary enforcement of federal law is “not good for the marijuana industry or patients that benefit from these programs,” said Jonathan Banks, a criminal justice research associate at the Cato Institute.

“More than half the states have legalized some sort of marijuana use,” Banks said, “and there was nothing in that hearing that led us to believe that [Sessions is] going to be any better than he has been in the past.”

The Alabama senator’s past statements condemning cannabis have been widely reported at this point. “Good people don’t smoke marijuana,” he once said. He’s also joked that he thought members of the Klu Klux Klan “were OK until I found out they smoked pot.”

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Not everyone felt threatened by the responses from Sessions, however.  Troy Dayton, co-founder of the Oakland, Calif.-based Arcview Group, said the AG nominee “left the door open [to enforcement of federal law] but indicated it would be a low priority. That’s a huge victory considering [Sessions’] previous inflammatory statements about this topic,” Bloomberg reported.

“He also recognized that enforcing federal marijuana laws would be dependent upon the availability of resources, the scarcity of which poses a problem,” Robert Capecchi, the Marijuana Policy Project’s director of federal policies, said in a statement. “He was given the opportunity to take an extreme prohibitionist approach, and he passed on it.”

Tom Angell, chair of legalization advocacy group Marijuana Majority, said in a statement he’s “hopeful the new administration will realize that any crackdown against broadly popular laws in a growing number of states would create huge political problems they don’t need and will use lots of political capital they’d be better off spending on issues the new president cares a lot more about.”

Many were disappointed that senators didn’t push harder for a clear response from Sessions to questions about state-legal cannabis. Most Washington, DC, pundits expect to see Sessions easily confirmed by the full Senate, meaning the future for cannabis in the United States remains a mystery.

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