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Mass. U.S. Attorney Won't Rule Out Prosecuting State-Sanctioned Pot Businesses

Marijuana seedlings in trays at the NETA cultivation center in Franklin. (Jesse Costa/WBUR)MoreCloseclosemore
Marijuana seedlings in trays at the NETA cultivation center in Franklin. (Jesse Costa/WBUR)

As the legal marijuana industry attempts to establish itself under Massachusetts state law, the top federal prosecutor in the state said he cannot and will not rule out prosecuting state-sanctioned marijuana businesses.

Responding to calls from marijuana activists to clarify how he will enforce the federal prohibition on marijuana in a state that has legalized the drug, U.S. Attorney Andrew Lelling said Monday he will be assessing each violation of the federal marijuana prohibition on a case-by-case basis for prosecution.

"I understand that there are people and groups looking for additional guidance from this office about its approach to enforcing federal laws criminalizing marijuana cultivation and trafficking," Lelling said in a statement Monday afternoon, after the Marijuana Policy Project and others pressed him to provide clarity. "I cannot, however, provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution."

U.S. Attorney General Jeff Sessions last week revoked an Obama era policy of looking the other way in state's that had legalized uses of marijuana, and gave Lelling discretion over enforcing federal marijuana laws in Massachusetts, where voters in 2016 legalized marijuana for adult recreational use.

Lelling, a 16-year veteran of the Justice Department, said this is "a straightforward rule of law issue" and said he will proceed on a case-by-case basis to determine whether a case is worthy of expending "limited federal resources" to pursue.

"Congress has unambiguously made it a federal crime to cultivate, distribute and/or possess marijuana. As a law enforcement officer in the Executive Branch, it is my sworn responsibility to enforce that law, guided by the Principles of Federal Prosecution," he said. He added, "Deciding, in advance, to immunize a certain category of actors from federal prosecution would be to effectively amend the laws Congress has already passed, and that I will not do."

Lelling's statement, which follows a vague statement from Thursday in which he singled out "bulk cultivation and trafficking cases, and those who use the federal banking system illegally" as areas of priority for his office, did not answer the questions marijuana activists had posed, but did provide them with some insight into Lelling's thinking.

"The most optimistic assessment would be that he did mention discretion about using limited federal funds on a case-by-case basis. An optimistic assessment would mean none of those cases would be determining prosecution moving forward with a business that's licensed by the Cannabis Control Commission. He didn't say that, that's an optimistic assessment," said Jim Borghesani, spokesman for the Marijuana Policy Project and former spokesman for the Yes on 4 Coalition. "A pessimistic assessment would be that he plans on enforcing federal law across the board. He didn't say that either, so it didn't give us the clarity we were hoping for."

Borghesani added: "I realize that it's difficult to speak in absolutes, but I would say that in this case where we're talking about a new law backed by the people of Massachusetts — created by the people of Massachusetts — that this is a case where more clarity is, I think, necessary."

State lawmakers -- speaking after a meeting between the governor, House speaker and Senate president Monday afternoon -- also seemed unsure of how the new U.S. attorney will enforce the federal marijuana prohibition when it comes to state-sanctioned cannabis commerce.

"There is a great deal of uncertainty that surrounds this marijuana industry as a result of what's come down from Washington and it obviously determines whether people can go into the industry with some degree of certainty — and we want to make sure that they can in this state — it determines the budget issues about it, it determines a lot of things," Acting Senate President Harriette Chandler said. "I guess if he takes it case by case we'll have to wait and see what this means."

House Speaker Robert DeLeo said he is "not sure exactly" what Lelling means by a case-by-case basis and noted that any business person interested in doing business in Massachusetts will be taking a close look at the business environment here.

"If you're a person who's looking to come into Massachusetts and to open up a business, a cannabis business, I'm not sure what type of message that sends, or what type of security that gives you, or lack of security, I should say," DeLeo said.

The Cannabis Control Commission has said it will forge ahead with establishing a legal market for marijuana — retail sales are expected to begin July 1 — despite the policy shift in Washington.

"The role of the Cannabis Control Commission remains the same — to fulfill the will of the voters of Massachusetts by implementing and administering a regulatory process that is safe, equitable and efficient," the CCC said in a statement Thursday. "Our priority has always been to protect public safety and develop regulations that are compliant with all laws including those passed by the voters and the legislature legalizing the recreational use of marijuana in the Commonwealth."

The CCC will meet on Tuesday morning, the first time since Sessions revoked the so-called Cole Memorandum that state marijuana regulators will face the public and press.

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