Most of us in the medical cannabis industry take for granted the protections against prosecution afforded by the 2004 Rohrabacher-Farr Amendment to the Federal Budget to Attorney General Jeff Sessions. These legal protections have been both wise and valuable, but presume an honest Attorney General will abide by both the intent, as well as the letter of the law.
One possible clue as to AG Sessions’ intent regarding medical cannabis was revealed in a letter he wrote on May 1 to the leaders of both chambers of Congress. In it, he requested that the protections offered under Rohrabacher-Farr come to an end. Fortunately, for the cannabis industry, Congress has since ignored his request.
When President Trump signed the 2017 Appropriations Act into law just 4 days later, he said upon encountering the Rohrabacher-Farr language in the bill, "I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed." Most policy analysts agree it’s likely the President feels he has a legal duty to uphold Federal Law which bans cannabis use and possession for most any reason, including State-legal marijuana programs.
If the intent, as implied above, is to prosecute medical cannabis dispensaries and suppliers, then the question remains as to how the current administration could get around the following Rohrabacher-Farr language:
"None of the funds made available in this Act to the Department of Justice may be used, with respect to [list of Medical Marijuana states], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."
While the language may seem bulletproof, it actually isn't.
This week Sessions delivered comments to the National District Attorneys Association that unveiled his secret weapon: asset forfeiture.
"...we hope to issue this week a new directive on asset forfeiture—especially for drug traffickers. With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners."
For those unclear on what (civil) asset forfeiture is, it is an often-questioned legal process by which police and other law-enforcement officers can seize your money and/or property if they suspect you of a crime. They don’t have to charge you with a crime, just suspect that your money and/or property was obtained by ill-gotten means (stolen, purchased with stolen money, purchased with laundered money, etc.).
Just in case you're unclear on how asset forfeiture actually works, listen up: If I'm a cop and I suspect you got your money and/or property by illegal means, I can arrest (confiscate) your stuff and you will likely never see it again. None of the following are required to be produced by the authorities: search warrants, proceedings, court orders, probable cause, due process, or criminal charges.
It's considered controversial because too often they can end up amounting to outright theft or becoming a “racket” by a law-enforcement group. Any time a government authority - or some guy down the block armed with a brickbat - comes by and takes your property by real or implied force ("I'll bash your teeth in!") Well, that’s pretty much the actual definition of theft. However, in a move surely designed to boost the Federal coffers, the U.S. government has somehow decided you and your property are separate things; this allows them to arrest your possessions without due process and leave you without much recourse to recompense.
With just a bit of loosening of the laws, AG Sessions could quickly and legally seize the assets of pharmacies, recreational shops, and individuals associated with the enterprise, as well as any other enterprise that has accepted money from THOSE individuals in the past. Banks, for example. All could be accused of profiting from “criminal activity,” according to Federal Law, and effectively gutted.
Since no criminal charges would be filed, it could be argued that no Federal dollars were spent trying to circumvent State laws. All the DEA would be doing is seizing assets from "drug dealers" in accordance with Federal Law. Said "drug dealers" would remain free of criminal charges, able to walk the streets, free to pursue their chosen profession - all under the dark umbrella of "we'll take your stuff when we want to."
AG Sessions is brazenly and loudly outspoken in his opposition to cannabis. He has made clear his intent to uphold Federal law - regardless of whether the law is just or unjust, humane or inhumane. He has a President who, so far, has shown every willingness to back him. The question is: what to do about it?
The time for cannabis allies to mobilize resources and fight this is now.
Bill is a 63-year-old cannabis enthusiast happily engaged to the love of his life in Denver, Colorado. He is retired both from the US Air Force and the computer industry, and is chasing his third career, in journalism.