How Sessions' Death Penalty Memo Affects Legal Pot Businesses

By Keri Blakinger 03/26/18

Although cannabis is legal in certain states, it’s still illegal federally—which means harsher sentences are a real possibility.

Attorney General Jeff Sessions

Days after the U.S. Attorney General issued a memo urging federal prosecutors to seek the death penalty for drug dealers, legal pot peddlers are questioning whether the controversial shift could impact them. 

In theory, any large-scale cannabis producers or growers who push out more than 60,000 kilograms of weed per year could qualify for the nation’s harshest punishment under a little-known law, according to the Denver Post.

The memo put out last week by Attorney General Jeff Sessions focused primarily on opioids, but federal laws don’t actually rule out the use of executions for traffickers of other drugs, a reality that has sparked concern in the cannabis industry.

“To not acknowledge the difference between a regulated cannabis business and a heroin kingpin is unfathomable,” Adam Spiker, executive director of the cannabis trade group known as the Southern California Coalition, told NBC News. “We will stand up against these outdated, draconian policies.”

Although cannabis is legal in certain states under state law, it’s still not legal federally—which means that Sessions can use federal statutes to pursue harsher sentences, even in states that don’t have capital punishment.

“I think it’s still very theoretical,” said Sam Kamin, a University of Denver law professor who specializes in marijuana law and the death penalty. “I don’t think anyone thinks the federal government is going to seek the death penalty against a state-licensed business. But what it highlights is this enormous disconnect with federal and state law.”

National Cannabis Industry Association (NCIA) executive director Aaron Smith brushed it all off as “just bluster” and other experts predicted that it wouldn’t hold up to Supreme Court scrutiny. 

But Aaron Herzberg, a partner with the pot-focused law firm Puzzle Group, acknowledged the risks implicit in Session’s long-standing anti-pot positions. 

“At any point Sessions could make trouble,” said Herzberg. “I’m not denying he could come knocking on our doors tomorrow.”

Late last week, Sessions also announced a “surge” of 250 new DEA officers and a slew of new analysts to help catch more drug dealers. 

“And when we do,” he said in Florida, “we will pursue the tough sentences they deserve.”

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Keri Blakinger is a former drug user and current reporter living in Texas. She covers breaking news for the Houston Chronicle and previously worked for the New York Daily News and the Ithaca Times. She has written about drugs and criminal justice for the Washington Post, Salon, Quartz and more. She loves dogs and is not impressed by rodeo food. Find Keri on LinkedIn and Twitter.