By Alexandra Slavet
On January 8, the U.S. Attorney for the District of Massachusetts, Andrew E. Lelling, noted in an official statement that he “cannot provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.” This appears to be the strongest negative statement yet from a federal prosecutor following US Attorney General Jeff Sessions’ recent rescission of a series of memoranda which had suggested low prioritization of prosecution of those in the cannabis industry. Sessions is offering each local US Attorney the discretion to pursue prosecutions of state-legal actors as long as they follow long established Department of Justice guidelines for all prosecutions. Other US Attorneys have, for the most part, stayed silent on the issue, confirmed no change in approach, or said they would study the issue.
Massachusetts has approved both medical and adult use of cannabis and is in the process of finalizing regulations to commence the growth and sale of adult use. Medical cannabis has been legal in the Commonwealth since January 2013. Lelling’s statement defers to the federal law and the legislative process, noting that Congress has declared it a federal crime to cultivate, distribute and/or possess cannabis, and indicates that he will make determinations of whether to prosecute on a case-by-case basis.
Lelling’s statement included a hint of hope for Massachusetts cannabis actors, noting the “limited federal resources” available to pursue such prosecutions. Lelling’s statement highlights the importance for licensed cannabis establishments in Massachusetts to strictly conform to the legal requirements and keep abreast of the developing regulations. Even though there is no guarantee of immunity from prosecution, if the standard is a case-by-case determination, industry advocates hope that Lelling’s discretion will lead him not to prosecute those abiding by state law.