Marijuana Prosecution Policy Change

AG Sessions Eliminates Obama Administration Regulation Regarding Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy that directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, even in States where recreational and medicinal cannabis usage has been approved by the voters. The new policy directive is problematic for a number of reasons, and ought to cause worry for individuals who utilize medical cannabis in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy modification might pose serious difficulties to the Marijuana industry, that has been steadily growing within the past decade. Up until the policy revision on Tuesday, a growing amount of States opposed Federal guidelines 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 use of cannabis, as Colorado and California have accomplished, as examples. Nevertheless, despite the fact that the law in Michigan permits the usage of Medical Cannabis, those individuals who are currently allowed to have, move and use cannabis legally under State law, are specifically breaking federal law, and those persons could be prosecuted in Federal Court for their narcotics violations.

Previously, the Obama Administration had presented a policy statement that, in States that had passed marijuana use laws, the Federal Government would disregard, unless they discovered cannabis being sold on school properties or in violation of other public policy regulations. The policy enabled the development of permitted use cannabis, both medical marijuana and recreational usage of marijuana, including here in Michigan. Now, there are severe fears that the development movement in other States will cease because of a concern that there may be a Federal crackdown on the cannabis industry. Given 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 cannabis 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 effect to Michigan, like other States, is not entirely ascertainable at this point. The question circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reallocating limited resources to prosecute medical cannabis establishments. 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 powerful push to focus on heroin, fentanyl, and human trafficking, all of which are primary concerns, 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 redirect those resources to begin strongly prosecuting marijuana associated companies.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, indicating that the applicant understands that the operation of their facility or usage of their license to participate in any way in the cannabis industry, is not authorized by Federal Law and that the United States Government could prosecute such a company for criminal violations. Prior to the policy position revision provided by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, however, Michigan Medical Marijuana Facilities Licensing Act applicants need to be familiar with the policy change, as they have a significant amount of capital in jeopardy in not only acquiring the license, but in handling their establishment. Despite The Fact That Medical Marijuana Facilities are operating in total compliance with Michigan Law, the operators, workers and financiers could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Several individuals might rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law okaying the use of marijuana under certain highly controlled circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can't authorize the usage of Medical Cannabis. The other perspective is that the Federal Government has said the usage of marijuana is prohibited and so, the States shouldn't have the ability to undermine those laws. Such is the age-old dispute over Federalism and States' Rights. The solution is, the States have their own system of regulations that they are permitted to execute, separate and apart from those passed and implemented 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, a result of what is typically called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in explicit disagreement, Federal Law may be executed, even if some States have contrasting laws, because of this dual system. Therefore, anyone applying for a facilities license under the Medical Cannabis Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact an attorney who can discuss with you the possible criminal liability you may be subject to in Federal Court should you establish and operate any of the facilities permitted under the MMFLA.

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