The Cato Institute

Legal Marijuana Under Attack

The DOJ is using the criminal law to trample on state prerogatives and individual rights…

Today, Attorney General Sessions announced that the Department of Justice rescinded the “Cole Memo,” an internal enforcement guideline from the Obama Administration that de-prioritized enforcement of federal marijuana prohibition against individuals and businesses complying with state laws regarding recreational marijuana. This move endangers state-legal businesses and violates the principles of federalism that have been central to the Republican Party for decades.

This was made possible, in part, by the failure of the judiciary to rein in the power of an overzealous federal government. The Supreme Court has twice approved of this type of overreach. In Wickard v. Filburn (1942) and Gonzales v. Raich(2005), the Court ruled that individuals growing crops exclusively for personal consumption—wheat and marijuana, respectively—could be regulated by the interstate commerce clause of the U.S. Constitution despite the crops never entering a market of any kind, let alone across state lines.

While the average marijuana consumer is not going to be targeted or arrested by the federal government, business owners directly and indirectly involved in state-legal recreational marijuana distribution may see their freedoms and livelihoods threatened by this action.  Put simply, the DOJ is using the criminal law to trample on state prerogatives and individual rights. 

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Jeff Sessions is Wrong on Civil Asset Forfeiture

Expanding the use of civil asset forfeiture is a giant step in the wrong direction for effective criminal justice policy… 

On Wednesday, Attorney General Jeff Sessions announced the reinstitution of a federal program that allows local police officers to seize personal property without so much as a criminal charge. 

Federal “adoption,” as it’s referred to, allows local police to seize property without criminal charge — which is forbidden or limited under some state laws — and turn it over to the federal government. Then, under what is known as the “equitable sharing” provision, up to 80% of the value of that seized property is returned directly to the local law enforcement agency for certain purposes such as paying for overtime or buying law enforcement equipment. 

Unlike criminal forfeiture, civil forfeiture requires no arrest or criminal proceeding for the government to seize and liquidate property that the government claimed was connected to a crime. While there are administrative procedures that must run their course between the time the property is seized and when the government may liquidate the asset, the burden is usually on the property owner to prove that the asset is licit and not tied to a criminal act, turning due process completely upside down.

Sessions’ announcement stands in stark contrast to bipartisan efforts on the state and federal levels to curb this too often-abusive practice. 

Although the attorney general paid lip service to protections for innocent property owners, the reinstitution of federal adoption incentivizes police to employ tactics that will likely ensnare presumptively innocent people and place burdens on them to prove their property is legal. Moreover, this may have a disparate impact on ethnic minorities by incentivizing racial profiling and skewing police priorities away from public safety.

Congress should act to rein in the DOJ’s forfeiture powers and respect state limits on civil forfeiture. Likewise, state governments should remove the financial incentive police departments have to shake down innocent drivers. 

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