Pubdate: Sat, 27 Jan 2018
Source: Buffalo News (NY)
Copyright: 2018 The Buffalo News
Author: Phil Fairbanks


When Attorney General Jeff Sessions did away with the Obama-era,
hands-off approach to recreational marijuana, he left the door open to
a new federal crackdown on the drug.

He also left the discretion for any stepped-up enforcement in the laps
of his local prosecutors.

In Western New York, where the recreational use of marijuana is still
illegal, Sessions' high-profile actions raised the question: Will
there be changes in the type of marijuana cases prosecuted here?

Three weeks later, there are no dramatic signs of a crackdown on pot
and, to the contrary, there's an expectation that little will change.

Criminal defense lawyers say the biggest reason is U.S. Attorney James
P. Kennedy Jr., a career prosecutor who, like his predecessor, has a
long history of pursuing only the most serious marijuana cases.

"There's a lot of legal and political uncertainty," said Buffalo
defense attorney Cheryl Meyers-Buth. "But I don't expect much to
change in terms of the number or type of marijuana prosecutions in our

The speculation over possible changes in Kennedy's handling of
marijuana cases began earlier this month when Sessions rescinded the
Cole memo, the Obama-era policy allowing federal prosecutors in states
where the drug is legal to focus resources elsewhere even though
marijuana was still illegal under federal law.

Sessions' announcement also came as medical marijuana advocates fought
to preserve another protection -- a congressional amendment barring
federal prosecutors from interfering in state-run medical marijuana
programs such as the one in New York State. The amendment expires Feb.

Kennedy, who was appointed by Sessions, not President Trump, said the
attorney general's action restores "the rule of law" and clarifies his
office's role in enforcing the laws Congress adopted.

"With his memo, the Attorney General is giving U.S. Attorneys local
control to utilize familiar and long-established prosecutorial
principles to determine how best to fulfill our ongoing obligation to
deploy our finite resources to reduce violent crime in our community,
stem the tide of the drug crisis and dismantle criminal gangs," he
said in a written statement to The Buffalo News.

In short, Kennedy added, "he is quite simply telling us to do our

Kennedy's statement is likely to be viewed as a message that his
office will continue to focus on what his predecessor, William J.
Hochul Jr., called the "worst of the worst."

"The types of marijuana cases that have historically been prosecuted
in Buffalo and Rochester have been high-volume, grow operation or
interstate transport cases, or have some connection to violence," said
Timothy W. Hoover, a Buffalo attorney and vice president of the New
York State Association of Criminal Defense Lawyers.

Hoover doesn't expect that to change, and neither does Herbert L.
Greenman, a prominent Buffalo defense lawyer.

Greenman, who is currently representing a client in a high-quantity
marijuana case, thinks Sessions' actions are directed at states where
pot is legal, not at states like New York where recreational use is
still against the law.

And like Hoover, he doesn't think Kennedy will change the type of
marijuana cases he prosecutes.

"To me, it doesn't make a lot of sense," Greenman said of Sessions'
decision to do away with the government's hands-off approach in states
where the drug is legal. "This is definitely a step in the opposite

Greenman believes government should "temper" its marijuana
prosecutions, especially when they involve nonviolent offenders. But
he also has serious doubts about legalization, particularly its health
effects, and thinks the states that have legalized it have yet to even
study those issues.

And yet, he also sees firsthand the prosecution of marijuana cases in
Buffalo federal court and the penalties for possession of larger
quantities, which are still severe.

"People are still going to jail," Greenman said.

In 2013, during a speech to the American Bar Association, another
attorney general, Eric Holder, offered a far different type of
directive to his prosecutors.

Holder, eager to reduce the federal prison population and the
disparities in how white and black defendants are treated by the
criminal justice system, told his U.S. attorneys to focus less on
low-level drug cases and more on violent, gang-related drug crimes.

At the time, Hochul said his office already had a long track record
doing what Holder suggested -- focusing on drug cases that involve
violence, gangs or large-scale criminal organizations.

On the surface, Sessions' repeal of the Cole memo would seem to
suggest that a new, tougher approach to marijuana is on the horizon.
But defense lawyers are skeptical, and one off the reasons is because
of the local U.S. Attorney's limited financial resources and
ever-expanding agenda of new prosecutorial priorities.

'They just don't have the resources to make a difference," said
Buffalo defense attorney Paul G. Dell.

Dell recently represented a Buffalo woman who was caught up in a
large-scale marijuana operation and is the type of nonviolent offender
defense lawyers point to when asking for leniency.

His client, who was in custody because of her drug addiction, pleaded
guilty to a misdemeanor and was sentenced to time served. U.S.
District Judge Lawrence J. Vilardo also ordered her into a drug
treatment program.

Later, when asked about Sessions' repeal of the Cole memo, Dell said,
"I think it's ridiculous and backwards, and runs contrary to all the
science and research we know of."

Not everyone is worried about the fallout from Sessions' actions, and
there is a growing pool of people who think the backlash, both from
the public and Congress, could be strong enough to help the
legalization movement.

"I don't think anyone who uses marijuana is going to be concerned
about his actions," Joel A. Giambra, the former Erie County executive
and current candidate for governor, said of Sessions.

Giambra, who was once a lobbyist for the marijuana industry and has
made legalizing pot a focal point of his campaign, thinks the attorney
general, a longtime opponent of marijuana, has "outlived his
usefulness" and in the end may help the legalization cause.

"I think the movement is so strong, we're at a point where Congress
will realize this is an industry that needs to be cultivated, if
you'll excuse the pun," he said.

Even Gov. Andrew M. Cuomo, a longtime opponent of legalization, is
softening his stance against the recreational use of marijuana.

Cuomo included money to study the economic and social impact of
legalization in his 2018 budget.
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