Size Still Matters in the Federal Government’s War on Marijuana

Co-blogger Will Baude makes a good point in noting that the Justice Department’s new memo on federal marijuana enforcement takes a more favorable tone towards large state-licensed marijuana businesses than its 2011 predecessor. Unfortunately, however, this is only a very minor shift.

The new memo states that prosecutors should not use “the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities.” But that means that size can still be emphasized – even very heavily – so long as it is considered in conjunction with other “available information and evidence.” Thus, US attorneys who want to target large marijuana operations can still do so. This is especially true once we remember that, even in states where marijuana is now legal, the memo actively encourages prosecutors to go after marijuana enterprises that impinge on any of eight broadly worded “federal priorities,” or any other “important federal interest.” With respect to many of those interests, it is easy to argue that a larger enterprise might threaten them more than a smaller one. For example, the larger the commercial operation, the more likely it is to produce at least some marijuana that might be “diverted, directly or indirectly, and purposefully or otherwise, to minors,” or result in the “diversion” of some marijuana to states where it is still illegal.

The new memo’s less hostile tone towards large producers might make a difference at the margin. Prosecutors who already prefer to avoid marijuana prosecutions might feel slightly more empowered to do so. But the new memo provides little real protection for large-scale commercial marijuana operations in states where they are now legal.