President Trump’s pick for attorney general, William Barr, gave views on legal cannabis during his confirmation hearing on January 15 and 16 that some see as positive for the industry, despite his history pushing mass incarceration.
Barr isn’t an unfamiliar face in Washington: He was President George H. W. Bush’s attorney general for the last year of his presidency.
Whether Barr poses more or less of a threat than former Attorney General Jeff Sessions remains up for debate.
Like Sessions, Barr is no fan of cannabis. During his confirmation hearing he advocated for a federal ban on cannabis, accusing the current system of “breeding disrespect for the federal law.”
Yet contrary to Sessions, who was fired by Trump in November, Barr indicated he’ll maintain the expectations set by the Cole Memo, which formalized the federal government’s hands-off approach on cannabis and which Sessions rescinded just more than a year ago.
“We should either have a federal law that prohibits marijuana everywhere, which I would support myself because I think it’s a mistake to back off on marijuana,” he said. “However, if we want a federal approach, if we want states to have their own laws, let’s get there and let’s get there the right way.”
Mason Tvert, spokesperson for the Marijuana Policy Project, said there’s no reason to suspect Barr would launch any enforcement actions against state-legal cannabis, because Sessions didn’t.
“His comments during the confirmation hearing indicate he is likely very much of the same mindset and will likely continue the same general policies,” he said.
Tvert has heard previous predictions of doom for the cannabis industry. Rumors of a crackdown on the industry swirled when Trump was elected, when Sessions was nominated, and again when Sessions was confirmed.
“If something actually changes, then there’s reason to be concerned that major changes are occurring,” he said. “But thus far, we’ve seen no indication there will be a significant change in how they enforce federal marijuana laws.”
Barr is no softie when it comes to obeying the law, his record shows. Under Bush, Barr was an extreme advocate for mass incarceration.
“First, prisons work,” he wrote in a 1992 memo, “The Case for More Incarceration.” “Second, we need more of them.”
He went on to suggest the solution to crime lies in longer criminal sentences, shorter probation periods, and limited parole.
Criminal justice has changed in the past 20 years. Trump himself recently signed a bill to reduce mandatory minimum sentences and expedite parole for low-level convicts. Barr’s views don’t seem to have evolved. In a November op-ed for the Washington Post, he praised Sessions’ order last year for prosecutors to seek the most severe punishments for criminals.
Tvert doesn’t see Barr’s stance on incarceration as relevant to how he would approach the cannabis industry.
“He flat out said he is going to follow the same general policy as was laid down in the Cole Memo,” Tvert pointed out.
Barr even put that promise in writing, as marijuana reporter Tom Angell reported on Monday.
"As discussed at my hearing, I do not intend to go after parties who have complied with state law in reliance on the Cole Memorandum," he wrote to senators on Sunday who had asked him about his potential marijuana policy. "I still believe that the legislative process, rather than administrative guidance, is ultimately the right way to resolve whether and how to legalize marijuana."
Among the most skeptical senators to question Barr during the confirmation hearing were Cory Booker, D-New Jersey, and Kamala Harris, D-California, both of whom represent states with recreational cannabis.
Senator Cory Gardner, R-Colorado, tweeted that he was “encouraged” by Barr’s comments on legalizing cannabis “the right way,” mentioning the STATES Act introduced in June 2018.
That act would amend the Controlled Substances Act to no longer apply to states that have legalized cannabis through initiatives or legislation.
Booker also introduced the CARERS Act last year, which would also amend the CSA to omit CBD and any cannabis with less than 0.3 percent THC.
Though neither bill ultimately passed, both marked major developments in congressional support for cannabis reform at the national level.
This year, Representative Earl Blumenauer, D-Oregon, introduced HR 420, the “Regulate Marijuana Like Alcohol Act.” The act would remove cannabis from the Drug Enforcement Administration’s list of controlled substances and task existing departments with management of the plant.
Representatives Steve Cohen, D-Tennessee, and Don Young, R-Arkansas, reintroduced a version of the CARERS Act in the House of Representatives, and Representative Morgan Griffiths, R-Virginia, introduced a bill to move cannabis to from Schedule I to Schedule II under the CSA.
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Justin Strekal, political director with the National Organization for the Reform of Marijuana Laws, agreed that Barr is not likely to be a threat, and expressed desire that a noninterference policy would lead to even more changes.
"William Barr is wise to acknowledge that the genie is out of the bottle when it comes to the marijuana reform movement," Strekal said in a written statement on Monday. "Now is the time for the Department of Justice to work in good faith with the Senate Judiciary Committee on legislative solutions that address the senseless waste of law enforcement’s precious time and resources due to the failed federal policy of prohibition and criminalization."
NORML's national director, Erik Altieri, told CBS News after Barr's confirmation hearing on January 16, said that although he's encouraged by Barr's words, the industry needs to stay "vigilant" and make sure Barr keeps that promise if he's confirmed.
The Judiciary Committee is expected to vote on Barr's confirmation on Tuesday, and a full vote of the Senate is expected next week.