By Tom Asbury
A memorandum released by the U.S. Department of Justice on Jan. 4 instructs all U.S. Attorneys implement their prosecutorial discretion to enforce the Controlled Substances Act (CSA) of 1970 relating to cultivation, distribution, and possession of marijuana, regardless state-specific legality. Such activities, the memo directs, may serve as the basis for federal prosecution of other crimes like the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act. For U.S. Attorneys, the standard or review requires balancing the weight of all relevant considerations including federal law enforcement priorities set by the Attorney General, the deterrent effect of criminal prosecution, the seriousness of the crime, and the cumulative community-impact of particular crimes.
In 2009, the Department promptly retreated from guidance that U.S. Attorneys should not prosecute those whose actions are clearly and unambiguously in compliance with existing state medical marijuana laws providing, including large-scale, for-profit commercial marijuana cultivation and distribution businesses in jurisdictions where there is a robust and efficient regulatory system.