4 ms·

It's illegal in all states of the US. Some states have decided to make it legal, but that only protects you from prosecution by the state. If you enter a federa

It's illegal in all states of the US. Some states have decided to make it legal, but that only protects you from prosecution by the state. If you enter a federal facility or you're stopped by a federal agent, then you can still go to jail despite the states' stance on cannabis.

fnordpiglet 3y ago
As I understand it since the Obama first administration DOJs stance has been to not pursue cannabis crimes in any state that has legalized it (“Cole memo”) which was rescinded by Sessions, but with no follow through by prosecutors. Barr again deprioritized cannabis and Garland has gone even further. The issue for banks and financial firms is they sit at both an interstate commerce point of view, which is firmly federal, but they also exist in a highly regulated and scrutinized world. Until the law changes DOJ deprioritizing cannabis enforcement helps them not at all - they’re still facilitating a crime, and can be held to account by a later administration on the whims of the electorate and they would be clearly in violation of the law.
- dragonwriter 3y ago
  > As I understand it since the Obama first administration DOJs stance has been to not pursue cannabis crimes in any state that has legalized it (“Cole memo”) which was rescinded by Sessions, but with no follow through by prosecutors The Cole Memo stopped being the important bar to prosecution with the Rohrbacker-Farr Amendment erecting a statutory bar since 2014 (which DoJ initially tried to dodge hard but got slapped down by a trial court in 2015 and the Ninth Circuit in 2016, and seems to have mostly given up after that.) But that amendment is a provision of spending bills restricting prosecution, not a legalization, and could easily be dropped and expose conduct to prosecution back as far as the statute of limitations.
  - landemva 3y ago
    > could easily be dropped and expose conduct to prosecution back as far as the statute of limitations. If a law is changed, there is protection from ex-post-facto prosecution.
    - dragonwriter 3y ago
      > If a law is changed, there is protection from ex-post-facto prosecution. The law criminalizing and punishing the conduct hasn’t been changed. Every spending bill since 2014 has just placed a temporary prohibition on DoJ spending money to prosecute certain violations while that funding authorization is in effect. So, there is no ex post facto issue: the conduct is criminal and subject to punishment under existing law, and can be prosecuted any time Congress allows DoJ to spend money for that purpose (unless barred for some other reason, like the statute of limitations.) This fact very much impacts the contours of the state-legal marijuana business, including who is willing to be involved with it, and how they do business. A policy (whether executive policy as existed under the Cole Memo, or legislative policy) against prosecution is substantially different in legal effect than actually removing conduct from the scope of criminal prohibition. If it had been legalized (even conditionally on state law), yes, ex post facto would be an issue if the policy changed. As it is, though, it is not.
labcomputer 3y ago
> It's illegal in all states of the US. It's federally illegal in all states of the US. And that illegality is probably constitutional, provided that whoever is prosecuted is doing something related to interstate commerce (growing in Nevada, selling in California, for example) It isn't clear to me that simple possession (or even a cash sale between a grower and consumer in the same state) stands up to constitutional scrutiny, in the post-Wickard v. Filburn era. So, I think you could appeal the constitutionality of federal possession charges and have them overturned on constitutional grounds. However, the problem for MasterCard is that they are based in New York, and are engaged in selling their payment services to businesses outside New York. That's very clearly interstate commerce and thus federal laws clearly apply here.

fnordpiglet 3y ago

As I understand it since the Obama first administration DOJs stance has been to not pursue cannabis crimes in any state that has legalized it (“Cole memo”) which was rescinded by Sessions, but with no follow through by prosecutors. Barr again deprioritized cannabis and Garland has gone even further. The issue for banks and financial firms is they sit at both an interstate commerce point of view, which is firmly federal, but they also exist in a highly regulated and scrutinized world. Until the law changes DOJ deprioritizing cannabis enforcement helps them not at all - they’re still facilitating a crime, and can be held to account by a later administration on the whims of the electorate and they would be clearly in violation of the law.

dragonwriter 3y ago
> As I understand it since the Obama first administration DOJs stance has been to not pursue cannabis crimes in any state that has legalized it (“Cole memo”) which was rescinded by Sessions, but with no follow through by prosecutors The Cole Memo stopped being the important bar to prosecution with the Rohrbacker-Farr Amendment erecting a statutory bar since 2014 (which DoJ initially tried to dodge hard but got slapped down by a trial court in 2015 and the Ninth Circuit in 2016, and seems to have mostly given up after that.) But that amendment is a provision of spending bills restricting prosecution, not a legalization, and could easily be dropped and expose conduct to prosecution back as far as the statute of limitations.
- landemva 3y ago
  > could easily be dropped and expose conduct to prosecution back as far as the statute of limitations. If a law is changed, there is protection from ex-post-facto prosecution.
  - dragonwriter 3y ago
    > If a law is changed, there is protection from ex-post-facto prosecution. The law criminalizing and punishing the conduct hasn’t been changed. Every spending bill since 2014 has just placed a temporary prohibition on DoJ spending money to prosecute certain violations while that funding authorization is in effect. So, there is no ex post facto issue: the conduct is criminal and subject to punishment under existing law, and can be prosecuted any time Congress allows DoJ to spend money for that purpose (unless barred for some other reason, like the statute of limitations.) This fact very much impacts the contours of the state-legal marijuana business, including who is willing to be involved with it, and how they do business. A policy (whether executive policy as existed under the Cole Memo, or legislative policy) against prosecution is substantially different in legal effect than actually removing conduct from the scope of criminal prohibition. If it had been legalized (even conditionally on state law), yes, ex post facto would be an issue if the policy changed. As it is, though, it is not.

labcomputer 3y ago

> It's illegal in all states of the US. It's federally illegal in all states of the US. And that illegality is probably constitutional, provided that whoever is prosecuted is doing something related to interstate commerce (growing in Nevada, selling in California, for example) It isn't clear to me that simple possession (or even a cash sale between a grower and consumer in the same state) stands up to constitutional scrutiny, in the post-Wickard v. Filburn era. So, I think you could appeal the constitutionality of federal possession charges and have them overturned on constitutional grounds. However, the problem for MasterCard is that they are based in New York, and are engaged in selling their payment services to businesses outside New York. That's very clearly interstate commerce and thus federal laws clearly apply here.