DOJ Reverses Course on Marijuana Enforcement

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The U.S. Department of Justice released a memorandum on December 4th, directing all U.S. Attorneys to use their prosecutorial discretion to enforce the Controlled Substances Act (CSA) of 1970 with respect to the cultivation, distribution and possession of marijuana regardless whether it is legal under state law. The memorandum adds that these activities may serve as the basis for the federal prosecution of other crimes such as prohibited by the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act. As true for all enforcement activities, U.S. Attorneys are to weigh all relevant considerations including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and cumulative impact of particular crimes on the community.

The Department immediately receded from guidance beginning in 2009, providing that U.S. Attorneys should not prosecute individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana or even large-scale for-profit commercial marijuana cultivation and distribution enterprises in jurisdictions where there is a strong and effective regulatory system. The receded from guidance had also shielded financial institutions or individuals providing banking services to these types of marijuana-related businesses except when willfully blind to diversion of marijuana from states where legal to illegal.

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