Justice Department Revokes Obama-Era Guidance on Marijuana Enforcement

The Justice Department has revoked prior guidance on enforcement of federal marijuana laws in states where the drug has been legalized, Attorney General Jeff Sessions said today in a memo to federal prosecutors. Related guidance on handling marijuana-related transactions, issued in 2014 to financial institutions from the Financial Crimes Enforcement Network in coordination with the Justice Department, remains in force for the time being.

Sessions’ memo noted that cultivating, distributing and possessing marijuana remains a federal crime under the Controlled Substances Act. “These activities also may serve as the basis for the prosecution of other crimes, such as those prohibited by the money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act,” he said. “These statutes reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”

Sessions noted that U.S. attorneys continue to have discretion on law enforcement in their districts, stating that previous nationwide guidance issued by the Obama-era Justice Department was unnecessary. The previous guidance came in a series of memos in recent years as several states have moved to liberalize their laws on medicinal or recreational marijuana use and sales. Prior DOJ guidance urged U. S. attorneys to consider whether investigation and prosecution of activities legal under state law was the best use of limited resources and directed federal prosecutors to focus on specific crimes related to marijuana, such as distribution to minors, trafficking of other illegal drugs or firearms via marijuana distribution and drugged driving.

While the American Bankers Association has long recognized that only Congress can change the treatment of marijuana under federal law, the association also encourages regulatory and enforcement agencies to consider supervisory and enforcement approaches that work to reconcile the challenges banks face with wanting to serve their local communities while at the same time complying with BSA programs to block illicit use of the financial system. For more information, contact ABA’s Rob Rowe. For information related to marijuana and health savings accounts, contact ABA’s Kevin McKechnie.