Last week, U.S. Attorney General Jeff Sessions rescinded an Obama-era memo that discouraged enforcement of federal marijuana restrictions on states where cannabis has been legalized.
This does not necessarily mean the budding medical marijuana industry in Arkansas, approved by a 2016 ballot initiative, will be subject to prosecution by federal officials. But unless Congress keeps in the 2019 budget the Rohrabacher-Blumenauer amendment to stop the Department of Justice from spending money on medical marijuana crackdowns, law enforcement could target the marijuana industry.
Last May, Sessions called for a budget that did not include the amendment. The Rohrabacher-Blumenauer amendment is set to expire Jan. 19.
A majority of states have decriminalized marijuana, made recreational use legal or approved medical marijuana, according to NORML, which tracks cannabis laws.
In response to the DOJ's policy change, the Arkansas Medical Marijuana Association called on Arkansas's congressional delegation to reauthorize Rohrabacher-Blumenauer. In a statement, the association said it "will work with the congressional delegation to ensure that Arkansas continues to have the right to administer a successful medical marijuana program."
None of Arkansas's congressional delegation responded to questions from the Arkansas Times about their support for the amendment.
Even if the amendment were not included in the budget, federal prosecutors would still have discretion in bringing federal cases against the marijuana industry. In announcing the decision to rescind the memo, the DOJ painted it as adding a tool to the belt of prosecutors "to disrupt criminal organizations, tackle the growing drug crisis and thwart violent crime across our country."
Cody Hiland, the U.S. attorney for the Eastern District of Arkansas, said in a statement that the decision by Sessions "underscores his continued commitment to entrust prosecutorial discretion to the U.S. attorneys throughout the country. We are a nation of laws and not men. I took an oath to uphold the Constitution and the laws of the United States, and that is what this office has done and will continue to do throughout my term as U.S. attorney. To that end, we will continue to exercise our prosecutorial discretion and evaluate criminal cases on an individual basis as it relates to the law and the facts as presented."
A spokesman for Kenneth Elser, acting U.S. attorney for the Western District of Arkansas (Duane "Dak" Kees assumed the role on Friday), referred the Times to the DOJ's main office. Asked during a Jan. 4 press conference about Sessions' announcement, Governor Hutchinson said he believes the DOJ and Sessions should distinguish between medical and recreational use when it comes to federal enforcement of existing laws. Hutchinson said Sessions "should look at where President Trump has been" on the subject. "President Trump has recognized medical marijuana as an appropriate exception to federal enforcement policy," Hutchinson said, "but he's not said the same thing about recreational use." "I think it's a very significant development," Hutchinson said of Sessions' move. "The question is what he's going to replace that guidance with ... [and] whether there's going to be any carve-out exception in federal enforcement policy."
Hutchinson, a former head of the federal Drug Enforcement Administration, said Arkansas particularly needs guidance on whether banks can legally perform transactions related to cannabis sales without the Obama administration's Cole memorandum, which Sessions rescinded.
Hutchinson believes federal law should be enforced against recreational marijuana. "I do not want Arkansas to become a recreational use state. The people passed medical marijuana; they did not adopt recreational use, and I do not believe they would. And so I don't want to see that national trend working its way into Arkansas, and federal enforcement is an important part of where we go as a country." More blunt was the assessment by state Rep. Doug House (R-North Little Rock), who shepherded the medical marijuana policy framework through the legislature and who has worked to find banking institutions that will handle the state's medical cannabis industry. House said the DOJ's move could cause financial institutions to bail out of banking with cannabis-related businesses nationwide, requiring cash transactions with dispensaries and cultivators, which House has called a potential public safety hazard.