Marijuana Prosecution Regulation Change

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

Criminal Law Consequences. The policy revision could pose major challenges to the Marijuana industry, that has been progressively progressing over the past decade. Until the policy modification on Tuesday, a growing amount of States resisted Federal regulations and prohibitions on marijuana usage for any reason, and have passed medical cannabis statutes, as we have here in Michigan, or they have permitted recreational usage of cannabis, as Colorado and California have done, as examples. However, even though the legislation in Michigan allows the use of Medical Marijuana, those persons who are currently allowed to possess, transport and use cannabis lawfully under State law, are specifically violating federal law, and those individuals could be prosecuted in Federal Court for their narcotics infractions.

Previously, the Obama Administration had produced a policy statement that, in States that had passed marijuana use laws, the Federal Government would disregard, unless they discovered marijuana being sold on school properties or in violation of other public law directives. The policy allowed for the growth of legalized use of cannabis, both medical cannabis and recreational use marijuana, including here in Michigan. Now, there are severe concerns that the development movement in other States will stop because of a worry that there may be a Federal crackdown on the cannabis industry. Dued to the fact that there are central registries in States that have medical cannabis, and that in States that have authorized recreational use, corporate documents denoting businesses that are participated in the marijuana industry, there are, rightfully many individuals who are afraid of arrest and, worst of all, Federal forfeiture of money and their crops.

Impact on Michigan. The effect to Michigan, like other States, is not fully ascertainable at this moment. The concern circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning constrained resources to try medical marijuana facilities. The U.S. Attorney's Office has a limited 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, specifically in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts suggest that it is unlikely that the US Attorney will redirect those resources to start aggressively prosecuting cannabis associated companies.

However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, indicating that the candidate understands that the operation of their facility or use of their license to take part in any way in the marijuana business, is not permitted by Federal Law and that the United States Government could prosecute such a company for criminal violations. Prior to the policy position change provided by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, however, Michigan Medical Cannabis Facilities Licensing Act applicants need to be familiar with the policy change, as they have a significant quantity of funding in jeopardy in not only getting the license, but in running their business. Even if Medical Cannabis Facilities are functioning in complete compliance with Michigan Law, the owners, workers and financiers could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Many individuals might rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law permitting the usage of marijuana under certain highly controlled conditions. Why should the Federal Government be able 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 marijuana is prohibited and so, the States should not be able to undermine those laws. Such is the age-old dispute over Federalism and States' Rights. The answer is, the States have their own system of laws that they are authorized 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, an outcome of what is commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in direct disagreement, Federal Law may be implemented, 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 go over with you the possible criminal liability you may be subject to in Federal Court should you open and run any of the facilities permitted under the MMFLA.

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