Law360

With 33 states and Washington, D.C., already permitting the use of medical marijuana, and another 10 states plus the District of Columbia allowing for the recreational use of the drug, the march toward nationwide legalization — or, at least, decriminalization — is quickly progressing. Of course, one significant roadblock remains: Marijuana is still illegal under federal law.

Authors: Zachary S. Roman Michael H. Sampson

It is too late to turn back now, however. Change in federal law, allowing for the use of, at a minimum, medical marijuana nationwide, is inevitable. Until that change occurs, though, the federal government must take a sensible approach to addressing the tension between federal and state marijuana law.

“[C]omitted to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way[,]” the U.S. Department of Justice under the Obama administration “focused its [marijuana-related] efforts on certain enforcement priorities that are particularly important to the federal government.” That thoughtful approach came to a screeching halt when Donald J. Trump was elected president and Jefferson B. Sessions III, an ardent opponent of marijuana, became attorney general. Sessions rolled back Obama-era guidance de-emphasizing the prosecution of marijuana-related acts that complied with state law.

The departure of Sessions and the confirmation of William P. Barr as his successor present an opportunity for a much-needed reset in the federal government’s approach to state-sanctioned marijuana. To date, Barr has indicated that his Justice Department will indeed return to a more sensible approach.

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