Yes, Jeff Sessions Could Use RICO. No, It Wouldn’t End Legal Cannabis

Jeff Sessions is at it again.

President Trump’s US attorney general, continuing a pattern of threatening remarks toward state-legal cannabis markets, said Thusday on Hugh Hewitt’s conservative talk radio program that “we will enforce law in an appropriate way nationwide,” acknowledging the Justice Department could even bring federal charges under a law intended to combat organized crime.

“If you want to send that message, you can send it. Do you think you’re going to send it?”

Hugh Hewitt, talk radio host

Sessions’ statements came in response to prodding by Hewitt. “One RICO prosecution against one marijuana retailer in one state that has so-called legalization ends this façade and this flaunting of the Supremacy Clause,” Hewitt said, referring to charges brought under the Racketeer Influenced and Corrupt Organizations, which Congress enacted in 1970 to target the Mafia and other criminal organizations.

“Will you be bringing such a case?” Hewitt asked the attorney general.

“We will,” Sessions responded, then continued:

Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide. It’s not possible for the federal government, of course, to take over everything the local police used to do in a state that’s legalized it. And I’m not in favor of legalization of marijuana. I think it’s a more dangerous drug than a lot of people realize. I don’t think we’re going to be a better community if marijuana is sold in every corner grocery store.

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Hewitt pushed back:

No, but it would literally take one racketeering influence corrupt organization prosecution to take all the money from one retailer, and the message would be sent. I mean, if you want to send that message, you can send it. Do you think you’re going to send it?

Let’s pause here and unpack that.

What Hewitt’s arguing here—literally—is that a high-profile case against a single cannabis business would serve to deter other state-legal actors and put an end to adult-use cannabis. It’s an intuitive argument: Take down one major actor, put its head on a pike, and instill such fear into other potential targets that they voluntarily shut down.

Unfortunately, that’s not how it tends to work in real life.

To his credit, Sessions told Hewitt that “it’s a little more complicated than one RICO case.”

For one thing, the RICO approach has been tried already. In 2015, a Washington, DC-based anti-drug group, the Safe Streets Alliance, filed a flurry of RICO lawsuits against Colorado cannabis businesses. At least one shop shuttered almost immediately. In the aftermath, a Denver Post op-ed called RICO suits “a particularly dangerous development for Colorado’s still-nascent marijuana industry.

That’s accurate—RICO actions do pose a real threat to cannabis businesses. But if literally a single case could take down the industry, as Hewitt argued to Sessions this morning, that would’ve happened already.

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To his credit, Sessions told Hewitt that “it’s a little more complicated than one RICO case.”

We’ll be evaluating how we want to handle that. I think it’s a little more complicated than one RICO case, I’ve got to tell you. This, places like Colorado, it’s just sprung up a lot of different independent entities that are moving marijuana. And it’s also being moved interstate, not just in the home state.

Conceivably the DOJ or others could file RICO cases against many, many businesses. While that would pose a more existential threat to the industry as a whole, it would also be incredibly expensive and would mean pulling federal prosecutors away from other issues, like immigration. And, say, actual violent crime. This what has led some industry representatives to express skepticism that Justice Department has the resources to go after state-legal cannabis

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Of course, there are other ways to, as Hewitt put it, “take all the money from one retailer.” Civil asset forfeiture was touted by prohibitionists as the next hot cannabis-control tactic when it was popularized several years ago. It was a popular tactic in 2011, when federal authorities cracked down on California medical cannabis dispensaries. I covered those federal actions six years ago as a reporter in California, and I was impressed by federal prosecutors’ tactics. Hundreds of dispensaries were shut down for essentially the price of a postage stamp.

Here’s how it worked: Prosecutors mailed letters to cannabis dispensaries threatening to seize their assets if they didn’t voluntarily shut down. Expecting many to ignore the warning, the feds went one further, sending similar letters to hundreds of landlords who rented property to the cannabis businesses. The message: Kick out those businesses or we’ll come after your property, too.

In the short term, it was a marked success. Hundreds and hundreds of dispensaries, growers, and other businesses closed voluntarily. Those who fought back in court almost always lost, because prosecutors in federal court could effectively silence the defense that the targeted businesses’ actions were legal under state law.

These “crackdowns” destroy individual lives and businesses while the industry stubbornly carries on.

US attorneys in San Diego and Sacramento counties were especially vehement about shutting down dispensaries. In those areas, medical cannabis outlets were almost entirely eradicated. For a while, at least.

Just a few years later, though, they were back. California’s medical cannabis industry has continued to grow, and the state is on pace to open adult-use shops sometime next year. While some victims of the 2011 California crackdown are still in jail, many longtime operators never stopped doing business. One common strategy was for a dispensary to close down its storefront, then simply reopen as a delivery service. That’s partly why there are so many delivery services flourishing in California today.

The point isn’t that RICO actions or asset forfeiture pose no threat to state-legal cannabis businesses. They most certainly do. But past crackdowns have taught us that it’s wildly naïve to think that “it would literally take one” case to take down the industry. That fantasy tends to take flight in the heads of people who have zero information on the actual history of medical cannabis. Through hard experience, this is what we know happens: These “crackdowns” destroy individual lives and businesses while the industry stubbornly carries on.

In other words, it’s a lot like the rest of the failed war on drugs.

The bottom line? These new statements by Sessions are further indications that the Trump administration is serious about cracking down on adult-use cannabis in legal states. But it will probably take a lot more than some silver-bullet legal maneuver to do it effectively.

The other bottom line? A federal crackdown is only possible because Congress has failed to acknowledge the overwhelming, bipartisan support for federal authorities to respect state cannabis laws. Call your elected officials.

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