Can the new attorney general change pot laws in Washington? Legal expert weighs in

NOTE: This was first published to kiro7.com before Jeff Sessions was confirmed as attorney general. 

As President Donald Trump’s attorney general pick to lead the Department of Justice nears confirmation, pot advocates in states that legalized the drug wonder if his leadership could turn to federal marijuana enforcement.

Alabama Sen.Jeff Sessions openly said during a Senate drug hearing last year that “good people don’t smoke marijuana” claiming the drug is dangerous. According to the Washington Post, Sessions’ former colleagues testified years ago that he used the n-word and joked about the Ku Klux Klan, saying he thought they were “okay, until he learned that they smoked marijuana. ” Sessions denied the accusations.

>> Related: Read about how the widow of Dr. Martin Luther King Jr. also made allegations in 1986 that Sessions used the power of his office as U.S. attorney to intimidate minority voters.

During a panel discussion presidential power in modern politics on Wednesday, criminal law expert and University of Washington professor Trevor Gardner explained to a room full of hundreds of people that he expects a clash between the federal government and high profile marijuana producers and distributors in states where voters approved its use.

“[Sessions has] taken the Obama administration to task by name and mentioned Obama, attorney generals — Loretta Lynch and Eric Holder — as well as FBI Director James Comey saying they have all [failed] to enforce federal marijuana prohibition in criminal decriminalization states,” Gardner said.

Twenty-one states have decriminalized marijuana. This means certain small, personal-consumption amounts are a civil or local infraction, not a state crime.

Washington state voters legalized marijuana nearly four years ago. When it passed, the U.S. Attorney General’s office promised to take a hands-off attitude, as long people in Washington State kept it away from children and kept locally grown marijuana from crossing state lines. Under a new attorney general that could change, as selling it still remains a crime under federal law.

“I do think the federal government, the Department of Justice, and Jeff Sessions are going to be very aggressive about prosecuting marijuana production, distribution, and decriminalization states,” Gardner said. “This is not going to be an easy task for the government.”

Gardner gave the following points about why tackling local marijuana laws will be difficult for the federal government under a Trump administration:

  • The federal government does not have ability to direct state and local police
  • 1.2 million law enforcement agents, only 80,000 operating at federal level, which means in order for federal government to broadly enforce marijuana prohibition it needs to cooperation of state and local police. The DOJ prosecutes after arrests have been made by state and local police.
  • In the event Sessions does not have that cooperation, it will be difficult for them to prosecute and enforce the marijuana prohibition broadly in decriminalization states.

Watch Gardner speak at the 25-minute mark.

In a KIRO Radio interview, the former Washington state attorney general echoed the limits of the federal government when it comes to enforcing and the possibility of raiding local pot shops.

“You can only do so much,” Rob McKenna said. “So is this going to be the Department of Justice’s highest priority? Because it will bog them down in court for quite a while.”

“The other consideration is the fact that more than half of the states have legalized medical marijuana, and a growing number are legalizing recreational pot,” McKenna said. “So is this the fight they really want to have? He’s got to decide what his priorities are and whether the fight is worth it.”

After Sessions’ nomination, KIRO 7 News talked to Seattle City Attorney Pete Holmes – and longtime supporter of legal marijuana – who shared he has hope that the Trump administration will honor some campaign trail promises, such as some laws should be left up to the states.

>> Related: Seattle city attorney proposes marijuana home grows, lounges and merging medical system

But Seattle pot shop owners worry that even the idea of a federal crackdown will scare banks away and lead to diminished access to marijuana by limiting choices for customers.

Washington’s recreational marijuana sales passed the $1.1 billion mark with sales tax reaching $410 million in 2016.

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