Friday, January 05, 2018

Can the New DOJ Policy on Pot Be Applied Retroactively?

Guest Blogger

Alec Walen

On January 4, 2018, Attorney General Jeff Sessions issued a memorandum rescinding the prior policy of the Department of Justice (DOJ). This prior policy, spelled out in the so-called Cole memo, instructed “federal prosecutors to de-prioritize marijuana-related prosecutions in those states — except in certain cases, such as when there were sales to children, gang-related activity, or diversions of the product to states where it remained entirely illegal?” (NY Times article) The new policy emphasizes that DOJ prosecutors should pursue marijuana prosecutions just as it pursues every other criminal activity.

The implication of the new policy is that activity involving the cultivation, distribution and even possession of pot—activity that was legal under state law, and that people thought, relying on the Cole memo, was not going to the basis of a prosecution under federal law—can now form the basis of a federal prosecution. The question I want to raise is: would such prosecutions be constitutional?

In favor of prosecution, one can say that it’s always been obvious that the federal law was out there and that it is not negated by any state law to the contrary.

On the other hand, the Cole memo gave people reason to rely on the thought that the federal law was effectively nullified as long as they operated within certain limits. To prosecute them now is to “spring a trap” on them. (quoting Posner, dissenting in U.S. v. Wilson, 159 F.3d 280,289 (7th Cir. 1998)).

The constitutional hook for the defense is the due process clause. It is well known that the due process right not to be prosecuted based on the difficulty of knowing the law is a very limited right. Lambert v. CA, 355 U.S. 225 (1957) held that there was a due process right against conviction when the crime was “wholly passive,” the law was merely “for the convenience of law enforcement agencies,” and there was nothing about the circumstances to “alert the doer to the consequences of his deed.” But as Justice Frankfurter foretold in his dissent, the decision turned out to be “a derelict on the waters of the law.”

On the other side, there are a number of decisions rejecting the defense that a defendant could not have predicted that his behavior would be against the law. I could cite many, but I’ll go with just one set of cases, the Albertini cases and the S.Ct. decision in U.S. v Rodgers, 466 U.S. 475, 484 (1984). In the former, the 9th circuit held that a defendant could not be prosecuted for trespass when he lived in state in the 9th circuit and relied on 9th circuit precedent that held that he had a First Amendment right to protest on a military installation, even if the Supreme Court later overruled the 9th Circuit’s holding on his right to protest on a military base. But in the Rodgers case, the Supreme Court rejected that defense, holding that “the existence of conflicting cases from other Court of Appeals made review of that issue by this Court and against the position of the respondent reasonably foreseeable.” In other words, under the Rodgers decision, Albertini would have had no defense.

One could easily imagine a prosecutor arguing that it was always reasonably foreseeable that a new sheriff would come to town and decide to enforce the federal marijuana law, and that those who buy or sell pot had no right to rely on their state law permitting it and the federal policy not to enforce the federal law.

The question is: could the defense mount a compelling case that such a move would violate due process? It could go in two ways:

  1. Distinguish Rodgers. Perhaps it should be argued that there was no contemporaneous warning that the federal law might be enforced, and argue that people should have a right to rely on a policy statement from the U.S. department of justice about what will not be prosecuted.
  2. Revisit Rodgers.

Both strands could be reinforced with the thought that fundamental fairness, the principle of legality, and the principle behind the ex post facto law, all require that a decision to start enforcing federal law, law that the DOJ had publicly stated would not be enforced, can only result in prosecutions for activity that violates that law going forward, not retroactively.

If I were to bet on this, I’d bet heavily that the due process clause would not be found to protect those who relied on state law and federal policy. But as a matter of justice, it is clear to me that this would be a failure of fairness, legality and true due process norms.

Alec Walen is Professor of Law at Rutgers-Camden School of Law. You can reach him by e-mail at at awalen at

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