Cannabis Prosecution Policy Shift

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

Criminal Law Consequences. The policy change might present serious difficulties to the Marijuana industry, that has been progressively progressing over the past decade. Until the policy modification on Tuesday, an increasing amount of States opposed Federal policies and prohibitions on cannabis use for any reason, and have passed medical marijuana ordinances, as we have here in Michigan, or they have permitted recreational usage of marijuana, as Colorado and California have done, as examples. However, despite the fact that the legislation in Michigan permits the use of Medical Marijuana, those persons who are presently permitted to have, transport and use marijuana lawfully under State law, are directly violating federal law, and those persons could be prosecuted in Federal Court for their narcotics infractions.

Previously, the Obama Administration had presented a policy statement that, in States that had passed cannabis use laws, the Federal Government would disregard, except if they discovered marijuana being sold on school properties or in violation of other public law ordinances. The protocol enabled the growth of legalized use marijuana, both medical cannabis and recreational usage of cannabis, including here in Michigan. Now, there are serious fears that the expansion movement in other States will quit as a result of a worry that there may be a Federal crackdown on the marijuana industry. Given that there are central registries in States that have medical cannabis, and that in States that have authorized recreational usage, corporate documents denoting businesses that are engaged in the cannabis industry, there are, rightfully many individuals who are scared of arrest and, worst of all, Federal forfeiture of money and their yields.

Impact on Michigan. The effect to Michigan, like other States, is not completely ascertainable at this point. The concern circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reallocating constrained resources to try medical marijuana facilities. The U.S. Attorney’s Office has a restricted budget and has to prioritize when and where to spend those resources. Recently, there has been a strong push to target heroin, fentanyl, and human trafficking, all of which are major problems, specifically 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 redirect those resources to begin aggressively prosecuting cannabis related facilities.

Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, implying that the candidate recognizes that the operation of their facility or use of their license to participate in any way in the marijuana business, is not authorized by Federal Law and that the United States Government could prosecute such an entity for criminal offenses. Before the policy position change provided by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Marijuana Facilities Licensing Act applicants need to be aware of the policy change, as they have a substantial amount of funding at risk in not only acquiring the license, but in handling their establishment. Despite The Fact That Medical Marijuana Facilities are running in complete compliance with Michigan Law, the operators, employees and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Many individuals may rightfully shake their head in confusion at these concerns. One view is that, Michigan voters have passed a law allowing the usage of cannabis under specific highly controlled conditions. Why should the Federal Government have the ability to come in and tell the State of Michigan they can’t permit the usage of Medical Cannabis. The other view is that the Federal Government has said the use of cannabis is prohibited and so, the States shouldn’t be able to undermine those laws. Such is the age-old argument over Federalism and States’ Rights. The answer is, the States have their own system of laws that they are allowed to implement, separate and apart from those passed and executed by the Federal Government. The dualist system of laws is an outgrowth of the 10th Amendment’s provisions, permitting the States to have their own set of laws, an outcome of what is commonly called the “States’ Rights” movement. However, where Federal Law and State Law are in absolute disagreement, Federal Law may be executed, even if some States have conflicting laws, because of this dual system. Therefore, anyone applying for a facilities license under the Medical Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to speak to a lawyer who can go over with you the potential criminal liability you may be subject to in Federal Court should you establish and run any of the facilities authorized under the MMFLA.

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