Marijuana Prosecution Policy Shift

AG Sessions Removes Obama Administration Regulation Relating To Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions released a policy which directs local U.S. Attorneys to prosecute federal criminal offenses for cannabis law violations, even in States where recreational and medicinal cannabis use has been approved by the voters. The new policy directive is problematic for a variety of reasons, and ought to create concern for people who utilize medical marijuana in Michigan, or to those who dispense it.

Criminal Law Consequences. The policy revision could pose severe difficulties to the Cannabis industry, which has been progressively growing over the past 10 years. Until the policy change on Tuesday, an increasing number of States opposed Federal regulations and prohibitions on cannabis usage for any reason, and have passed medical marijuana statutes, as we have here in Michigan, or they have granted recreational usage of cannabis, as Colorado and California have done, as examples. Nevertheless, despite the fact that the law in Michigan enables the use of Medical Cannabis, those persons who are presently allowed to have, transport and usage marijuana legally under State law, are specifically violating federal law, and those individuals could be prosecuted in Federal Court for their narcotics violations.

Previously, the Obama Administration had put out a policy statement that, in States that had passed cannabis use laws, the Federal Government would look the other way, except if they discovered marijuana being sold on school grounds or in violation of other public policy directives. The protocol enabled the growth of legalized use of cannabis, both medical marijuana and recreational use of cannabis, including here in Michigan. Now, there are severe concerns that the development movement in other States will cease as a result of a fear that there may be a Federal crackdown on the marijuana industry. Dued to the fact that there are central registries in States that have medical marijuana, and that in States that have approved recreational use, corporate documents denoting businesses that are participated in the marijuana industry, there are, rightfully many individuals who are scared of arrest and, worst of all, Federal forfeiture of money and their plants.

Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this moment. The question circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reapportioning limited resources to try medical cannabis facilities. The U.S. Attorney's Office has a limited budget and has to prioritize when and where to devote those resources. Lately, there has been a powerful push to target heroin, fentanyl, and human trafficking, all of which are primary issues, especially in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts indicate that it is not likely that the US Attorney will refocus those resources to start strongly prosecuting cannabis associated facilities.

However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, suggesting that the candidate recognizes that the operation of their facility or use of their license to participate in any way in the cannabis industry, is not allowed by Federal Law and that the United States Government could prosecute such an entity for illegal offenses. Before the policy position change released by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, however, Michigan Medical Marijuana Facilities Licensing Act candidates need to be familiar with the policy change, as they have a considerable quantity of capital at risk in not only getting the license, but in handling their establishment. Even if Medical Marijuana Facilities are functioning in complete compliance with Michigan Law, the owners, employees and financiers could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Many individuals may rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law allowing the use of cannabis under specific strongly controlled conditions. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not authorize the use of Medical Marijuana. The other perspective is that the Federal Government has said the usage of cannabis is prohibited and so, the States shouldn't be able to undermine those regulations. Such is the age-old debate over Federalism and States' Rights. The solution is, the States have their own system of regulations that they are allowed to implement, separate and apart from those passed and enforced by the Federal Government. The dualist system of laws is an outgrowth of the 10th Amendment's provisions, allowing the States to have their own set of laws, an outcome of what is generally called the "States' Rights" movement. However, where Federal Law and State Law are in absolute conflict, Federal Law may be executed, even if some States have contrasting laws, because of this dual system. As a result, anyone applying for a facilities license under the Medical Cannabis Facilities Licensing Act, needs to not only take the waiver seriously, but needs to speak to an attorney who can discuss with you the possible criminal liability you may undergo in Federal Court should you establish and operate any of the facilities permitted under the mmfla.