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When Federal and State Law Conflict, Which Law Applies?

Armando Nava

The federal government does not recognize a distinction between medical and recreational marijuana, both are considered controlled substances. Under the Controlled Substance Act, Marijuana is classified as a Schedule I drug. This means that the federal government believes marijuana has a high abuse potential and has no medical value.

How do Federal Prosecutors Handle the Conflicting Laws?

When new state laws are at odds with federal law, federal attorney’s will look to the federal government for guidance. Although marijuana, medical and recreational, has always been illegal on the federal level, former US Attorney Generals have published memorandums guiding federal prosecutors and law enforcement in how to handle the discrepancy.

Under the Obama Administration

In October of 2009, Deputy Attorney General David Ogden announced formal guidelines, known as the Ogden-Memo, for how federal prosecutors should handle newly enacted laws authorizing the use of medical marijuana. It advised federal prosecutors to “not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing laws providing for the medical use of marijuana.” This did not preclude investigation or prosecution of medical marijuana, merely it just advised to review medical marijuana cases on a case-by-case basis with the guidance of resource allocation. The idea behind it was that there are more important targets for drug enforcement than the people who really are sick.

Once marijuana was legalized for recreational use, federal prosecutors were again looking at the federal government for guidance. In 2012, Colorado and Washington legalized marijuana for adult use, the next year former US Attorney General James E. Cole issued formal guidelines, known as the Cole-Memo, for how federal prosecutors should handle the new law discrepancy. It again listed certain priorities that should still be investigated and prosecuted. This memorandum was modeled after the Ogden Memo and unintentionally created a huge policy shift. Federal government, like the Ogden-Memo, de-prioritizing enforcing marijuana prohibition and shifted to a more hands-off approach.

Under the Trump Administration

Up to this point, there seemed to be an understanding of how the discrepancy in laws were to be handled. Once the Trump administration took charge, people were weary on how the federal government would handle these memorandums. In August 2017, the Task Force on Crime Reduction and Public Safety found no new policy suggestions and stated that federal prosecutors should continue as before. However, in January 2018, US Attorney General Jeff Sessions, under the rescinded the Cole-Memo. Now, federal prosecutors can use their own discretion to enforce federal marijuana law, medical and recreational, even in states where it is legal like Arizona. The goal is to “return to a rule of law” where federal prosecutors decide how they want to go after drug offenses.

So Where Does That Leave Us?

Regardless of the Cole-Memo being enforced or rescinded, both medical and recreational marijuana has always been illegal on the federal level. The only change after the Cole-Memo being rescinded is now federal prosecutors will treat these cases like any case, using their discretion on what to charge.

US Attorney General Jeff Sessions’ announcement is still relatively new, it is not yet clear how the change will affect Arizona. The medical marijuana industry is likely too big to undue and there are constitutional amendments that block the Justice Department from interfering with it. However, recreational marijuana is not off the table. In a Republican-dominated state, like Arizona, some worry that the prosecutorial mentality will be harsh on marijuana users after the announcement.

Marijuana law may be complicated, but The Nava Law Firm understands the law and knows how to use it to your advantage. Contact us immediately if you find yourself in a pinch with the law.

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