U.S. Deputy Attorney General James Cole issued a memorandum on August 29, 2013, titled “Guidance Regarding Marijuana Enforcement” (“Cole Memo”). The memorandum outlined 8 priorities for Department attorneys and law enforcement to focus their resources and enforcement:

1. Preventing the distribution of marijuana to minors;
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
3. Preventing the distribution of marijuana from states where it is legal under state law in some form to other states;
4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
7. Preventing the growing of marijuana on public lands; and
8. Preventing marijuana possession or use on federal property.

These priorities also offered prosecutorial protections to States that had legalized marijuana. However, it was unclear in its effects on Tribes as there was no mention of lands regulated by Tribes.

U.S. Department of Justice (DOJ) Executive Office for U.S. Attorneys Director Monty Wilkinson issued a memorandum on October 28, 2014, titled, “Policy Statement Regarding Marijuana Issues in Indian Country” (“Wilkinson Memo”). The Wilkinson Memo directs U.S. Attorneys to use the priorities from the Cole Memo to guide their efforts when enforcing federal law on Indian land. In doing so, the Wilkinson Memo recognized Tribal sovereignty by treating Tribal legalization decisions with the same deference given to State decisions.

The Rohrabacher-Farr Amendment signifies one of the first steps in legal protections for medical marijuana, as it prohibits the DOJ from utilizing funding to interfere with State-level marijuana laws. This amendment only remains in effect if it is renewed every fiscal year, and it has done so as a part of Congress’ Consolidated Appropriations Act. While additional amendments were introduced in 2022 to prohibit the use of funds to prevent any Tribe, State, Territory, or Washington, D.C. from implementing laws authorizing marijuana for any reason, they were not included in the final version of the 2023 Consolidated Appropriations Act.

Section 542 of the 2015 Consolidated Appropriations Act (CCA) provided language restricting the DOJ from using funds to prevent selected States from implementing their own marijuana laws. It has been included in every CCA since.

U.S. Attorney General Jeff Sessions issued a memorandum on January 4, 2018, titled, “Marijuana Enforcement” (“Sessions Memo”). The Sessions Memo rescinded the Cole Memo, which removed prosecutorial protections for States with marijuana policies. While initially devastating, no State was greatly impacted by this guidance.

President Biden’s Acting U.S. Attorney General Monty Wilkinson issued a memorandum on January 29, 2021, titled, “Interim Guidance on Prosecutorial Discretion, Charging, and Sentencing” (“Wilkinson Memo 2021”). The Wilkinson Memo 2021 rescinded U.S. Attorney General Jeff Sessions May 10, 2017, memo, “Memorandum on Department Charging and Sentencing,” that limited prosecutor discretion by requiring prosecutors to charge defendants with the most serious provable offense or, alternatively, seek supervisory approval to charge a less serious crime and seek a lesser sentence. It also reinstated U.S. Attorney General Eric Holder’s May 19, 2010, memorandum, “Department Policy on Charging and Sentencing,” that expanded prosecutorial discretion.

U.S. Attorney General Merrick Garland issued two memoranda on December 16, 2022, titled, “General Department Policies Regarding Charging, Pleas, and Sentencing” and “Additional Department Policies Regarding Charging, Please, and Sentencing” (“Garland Memos”). The Garland Memos expanded on the Wilkinson Memo and provided updated guidance to federal prosecutors on charging, pleas, and sentencing for federal offenses. Furthermore, U.S. Attorney General Merrick Garland stated in his March 1, 2023 testimony before the United States Senate that the DOJ’s marijuana policy will harken back to when former Deputy Attorney General Cole issued his memorandum on August 29, 2013.