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N.H. marijuana commission cautious after Sessions’s policy change 



Monitor staff
Tuesday, January 09, 2018

A policy reversal by U.S. Attorney General Jeff Sessions over marijuana enforcement has rankled the eight states that have legalized recreational use, with representatives voicing fears of a federal crackdown on a growing industry.

But as New Hampshire contemplates its own legalization effort, with a new House bill set for a vote Tuesday and a yearlong study commission meeting regularly, advocates on both sides are divided.

Some say Session’s move will likely alter discussion moving forward, creating a “chilling” effect over investors and bankers with their eyes on the Granite State. Others call that concern overstated, urging a wait-and-see approach as the new policy settles.

The uncertainty kicked off Thursday, when Sessions issued a memo to undo an Obama-era policy that had effectively allowed states to legalize without fear of federal intervention. Under the previous policy, known as the Cole memo, the Department of Justice explicitly prioritized using resources to stop sales made to minors, sales that benefited gangs and cartels, and sales to states that hadn’t legalized. Marijuana would still be a Schedule I illegal substance, but as long as states created and maintained regulations to police that activity themselves, federal agents would stay away from growing and distribution operations.

Reversing that policy could upend the industry, some say. It could also deter banks and financial institutions from participating in a hypothetical New Hampshire legalization effort, according to Todd Wells, chief bank examiner at the New Hampshire Banking Department. Wells sits on the legalization study commission, which met Monday.

New Hampshire already has trust issues among banks, Wells said. Despite the state legalizing medical marijuana back in 2013, no New Hampshire bank or credit union has offered its services for direct banking to any of the dispensaries, he said. Many have been nervous for years that the Department of Justice would take the action it took last week and chose long ago to avoid the financial risk, Wells said.

One bank that does business with New Hampshire dispensaries – Century Bank – is based in Massachusetts.

“There is a thin minority (of institutions) that have banked directly – they’ve done so because they felt that the Cole memo offered some protection,” Wells said. Taking the protection away, he added, could prompt flight.

“Financial institutions are very highly regulated. They have to be concerned not only with state law – they also have to be concerned with federal law,” he said. Sessions’s policy change, if enforced by the department, could hurt the viability of a program in New Hampshire, Wells said.

Not everyone had as bleak an outlook. Paul Twomey – the former House counsel who sat with the commission Monday – said the effects of Sessions’s decision are not yet clear. Potentially threatening the policy change, Twomey said, is Congress. An existing law, the Rohrabacher-Farr amendment, prevents the Department of Justice from using its funding to interfere with states’ medical marijuana programs. Congress could choose to expand that restriction to include recreational marijuana as well, Twomey said.

For his part, Rep. Pat Abrami, R-Stratham, who heads the study commission, said it’s impossible to judge the new policy until it’s seen in action over the next few months. But he said the policy justifies the need for the study commission, which is due to wrap up its research this fall.

“We have to give it time,” he said Monday. “We have to see what the Sessions memo actually said.”

Other House members aren’t content to wait. A new legalization bill sponsored by Rep. Renny Cushing, D-Hampton, is set for a vote Tuesday in the House, which has historically supported such policy.

Speaking about Sessions’s policy change Monday, Cushing called it “a real overreaching” by the federal government.

“The idea that he’s all of a sudden unleashing U.S. attorneys, knocking on doors of dispensaries where they dispense or sell medical marijuana, really goes contrary to the whole rhetoric about states’ rights and home rules,” Cushing said.

But he dismissed the suggestion that the new uncertainty could imperil the vote.

“I don’t think that’s going to have much of a negative impact,” Cushing said. “If anything, it may have the opposite effect. I think people kind of recoil at the idea that we’re going to have the heavy hand of the federal government knocking down the doors of patients who are using therapeutic cannabis and putting them under arrest.”

The precedent is fresh. On Thursday, hours after Sessions issued his memo, members of the Vermont House voted, 81-63, to legalize marijuana in defiance.

(Paul Steinhauser contributed to this report. Ethan DeWitt can be reached at edewitt@cmonitor.com, or on Twitter at @edewittNH.)