By: Michael H. Sampson, Esq.
Just less than five years to the day after then-President Barack Obama nominated him to be an Associate Justice on the U.S. Supreme Court – and, after that nomination ultimately was derailed by a Republican-led U.S. Senate – Merrick Garland was confirmed yesterday to be the next U.S. Attorney General. Nominated this time by President Joe Biden, Mr. Garland, formerly a federal appellate court judge, was confirmed with bipartisan support in the U.S. Senate by a vote of 70-30.
By a vote of 15-7, the Senate Judiciary Committee had voted on March 1, 2021 “to advance” then-Judge Garland’s nomination to the full Senate.
Following his March 10, 2021 confirmation – and, after his confirmation-hearing testimony – the cannabis industry generally has reacted positively to Mr. Garland.
For example, on the heels of his recent confirmation, Marijuana Business Daily reported that Mr. Garland’s confirmation was “a development that was cautiously hailed by some marijuana advocacy groups. The belief is that Garland’s confirmation could potentially usher in a more marijuana-friendly Department of Justice than existed in the Trump administration.”
Those words echoed that same publication’s reporting at the time of Mr. Garland’s confirmation hearings in February 2021: “The U.S. marijuana industry will likely have a friendlier attorney general if President Joe Biden’s pick, Merrick Garland, is confirmed as the head of the Department of Justice.”
Similarly, after those hearings, Justin Strekal, the political director for the National Organization for the Reform of Marijuana Laws, said in a statement: “There is much work left to do, but for the first time in over 4 years, supporters of ending federal marijuana criminalization no longer have an active opponent leading the Department of Justice.
Mr. Garland’s response to a question from Sen. Cory Booker (D-N.J.) about potentially reissuing the Cole Memorandum has garnered particular, positive attention. During his confirmation hearings, Mr. Garland responded that he did not think it was a “useful use” of limited federal resources to prosecute most cannabis-related conduct:
This is a question of the prioritization of our resources and prosecutorial discretion. It does not seem to me a useful use of limited resources that we have, to be pursuing prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise. I don’t think that’s a useful use.
I do think we need to be sure there are no end-runs around the state laws that criminal enterprises are doing. So that kind of enforcement should be continued. But I don’t think it’s a good use of our resources, where states have already authorized. That only confuses people, obviously, within the state.
To learn more about Mr. Garland’s testimony and the hope his confirmation offers the cannabis industry, please read Michael H. Sampson’s recent article in Cannabis Business Times, “Merrick Garland’s Confirmation as Attorney General Offers Hope to Cannabis Industry.”
In addition to addressing the waste of resources necessary to prosecute most cannabis-related conduct, Mr. Garland also addressed head-on the racial inequities associated with the prosecution of such conduct. In his “Responses to Questions for the Record,” for example, he stated: “[W]e have seen disparate treatment in these prosecutions that has a had a harmful impact on people and communities of color, including stymied employment opportunities and social and economic instability.”
It is comments such as the foregoing ones that offer hope to the U.S. cannabis industry, as well as to advocates of cannabis legalization. As first stated in Cannabis Business Times: “[T]he U.S. cannabis industry is optimistic that it now has an ally – or, at least, no longer an opponent – in the U.S. Department of Justice.”
And, as also stated therein, “[a]ny change in U.S. public policy concerning cannabis likely would have wide-ranging effects ….” Among others, changes or developments to watch for – or questions to be answered – include:
- Will the Biden-Garland Department of Justice (the “DOJ”) reissue the Cole Memorandum of issue some similar directive of its own?
- How will the Biden-Garland DOJ exercise prosecutorial discretion, and deploy its limited resources, specifically when it comes to conduct that is compliant with states’ adult-use cannabis laws?
- Who will President Biden appoint as U.S. Attorneys in various jurisdiction across the United States, and what do those individuals think about cannabis?
- Will Attorney General Garland make any further public comments about his personal beliefs about cannabis legalization or about the dichotomy in the way cannabis currently is treated at the federal level and the state level in the United States?
Leech Tishman’s Cannabis practice group, which is available to help with any or all cannabis-related legal issues, will continue to monitor developments in cannabis-related public policy, Attorney General Garland’s public statements concerning cannabis, any further developments at the DOJ affecting the cannabis industry, and their collective effect on judicial decisions.
f you have any questions about this recent development or other Cannabis legal issues, please contact Michael H. Sampson.
Mike is a Partner at Leech Tishman and Co-Chair of Leech Tishman’s Cannabis Group. He is also a member of the firm’s Litigation Practice Group and Chair of Leech Tishman’s Insurance Coverage Group . Michael is based in the Pittsburgh office and can be reached at 412.261.1600 or email@example.com.