In the 2016 elections, Arkansans approved Amendment 6 to the Arkansas Constitution. While Arkansas may have given the green light to the medical marijuana industry, the sale and use of marijuana still is illegal at the federal level. In late June 2011, the U.S. Department of Justice issued a memo reiterating the consequences of those individuals caught cultivating, selling or distributing marijuana. The memo also includes other parties who “knowingly facilitate such activities” as targets of prosecution. The exact language in the DOJ memo reads:
“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal laundering statutes and other federal financial laws.”
A few banks in other states with legalized marijuana had serviced medical marijuana businesses prior to directives from federal banking regulators consistent with the DOJ letter. Since that action by bank regulators, we are aware no bank continuing to knowingly bank marijuana businesses.
The only way ABA knows to deal with this is for the federal government to amend the Controlled Substances Act to create an exception to federal law For financial institutions to handle such transactions, further amendments may be needed to the USA Patriot Act, Bank Secrecy Act, and numerous other federal statutes.