To the litany of challenges facing state-licensed marijuana business owners, add another one: The federal government could — though probably won’t — try to execute them.
This week, U.S. Attorney General Jeff Sessions sent a memo to the nation’s federal prosecutors urging them to seek the death penalty in cases involving large-scale drug traffickers. The memo points to an existing but little-known federal law that already allows for such a punishment.
Sessions’ memo talks largely about opioids, but federal law contains no such drug-specific limitation on prosecutors’ power. Trace the law’s meandering route through federal statutes and you’ll come to this conclusion: Anyone convicted of cultivating more than 60,000 marijuana plants or possessing more than 60,000 kilograms of a substance that contains marijuana could face death as a punishment.
So, did Sessions just greenlight using the death penalty against the nation’s largest marijuana business owners?
“I think it’s still very theoretical,” said Sam Kamin, a University of Denver law professor who, as harmonic luck would have it, specializes in marijuana law and in 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.”
Aaron Smith, the executive director of the National Cannabis Industry Association, similarly dismissed the possibility of executions for marijuana business moguls, even if it is technically possible under the law.
“I really think that’s just bluster,” he said.
The Washington Post’s Christopher Ingraham was among the first to notice the latest Sessions memo’s potential impact on licensed marijuana businesses, which, though they are legal under their states’ laws are criminal drug traffickers under federal law.
But Smith and Kamin said they and others familiar with the fine intricacies of marijuana law have known about the death penalty provision for awhile. They both questioned whether it would hold up under a Supreme Court challenge.
The key to the law is the quantity of plants an operation cultivates — 60,000, double what is needed for federal prosecutors to seek a lifetime prison sentence. Colorado’s biggest marijuana businesses are secretive when it comes to how many plants they are growing at any one time; state regulators won’t release that data for individual businesses.
But, when asked how many businesses have more than 60,000 plants in their warehouses and greenhouses, Smith said, “There are many.”
In June 2017, the last month for which this data is available, there were a total of nearly 1 million marijuana plants under cultivation by Colorado’s state-licensed cannabis businesses. In California, one of the biggest dispensaries is building out a farm it expects will grow 100,000 plants at a time. And Smith said laws in states that have more recently adopted legal marijuana but limit the number of sales licenses available have likely increased the number of super-sized pot grows in the country.
Kristi Kelly, the executive director of the Colorado-based Marijuana Industry Group, said her organization has been closely watching Sessions and his policy shifts. Though Sessions has pulled back more explicit protection for cannabis businesses that are operating in compliance with their states’ laws, a lot of discretion is still left up to local U.S. attorneys to decide whether they want to file charges against a marijuana company.
Absent obvious violations of state law, federal prosecutors in Colorado have been fairly hands-off with the industry. And Colorado U.S. Attorney Bob Troyer said in January that nothing had changed in his office’s marijuana enforcement priorities since President Donald Trump took office.
For Kelly, that means businesses should continue to follow state law in good faith and not freak out — unless they receive more information suggesting that they should.
“So if there was a change in (Troyer’s position), that may be a factor,” Kelly said.
A message left Wednesday for comment from Troyer’s office was not returned, and a federal Department of Justice spokeswoman declined to elaborate on the memo’s meaning for marijuana businesses.
But, even if marijuana business owners won’t be headed to death row, Kamin said the memo has another impact — especially coming from an official who has not hid his disdain for the cannabis industry.
“What Sessions is reminding us,” Kamin said, “is that losing your life is at least statutorily possible.”
This story first appeared on DenverPost.com.
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