Cannabis Prosecution Policy Shift

AG Sessions Gets Rid Of Obama Administration Policy Regarding 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 marijuana law offenses, even in States where recreational and medicinal cannabis usage has been permitted by the voters. The new policy directive is problematic for a number of reasons, and ought to create worry for people that use medical marijuana in Michigan, or to those who dispense it.

Criminal Law Consequences. The policy modification could present severe challenges to the Marijuana industry, that has been gradually expanding over the past 10 years. Up until the policy revision on Tuesday, a growing number of States resisted Federal guidelines and prohibitions on cannabis usage for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have done, as examples. Nevertheless, despite the fact that the legislation in Michigan enables the usage of Medical Marijuana, those persons who are currently permitted to possess, move and use marijuana legally under State law, are directly violating federal law, and those persons could be prosecuted in Federal Court for their narcotics violations.

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 policy directives. The regulation enabled the growth of permitted use marijuana, both medical marijuana and recreational use of cannabis, including here in Michigan. Now, there are severe concerns that the expansion movement in other States will quit because of a fear 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 permitted recreational use, corporate documents denoting businesses that are participated in the marijuana industry, there are, rightfully many people who are afraid of arrest and, worst of all, Federal forfeiture of money and their products.

Impact on Michigan. The effect to Michigan, like other States, is not entirely ascertainable at this point. The concern circles around the problem of whether the US Attorneys for the Eastern and Western District have an interest in reallocating 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 spend those resources. Recently, there has been a strong drive to target heroin, fentanyl, and human trafficking, all of which are significant problems, particularly in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts indicate that it is unlikely that the US Attorney will refocus 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 disclaimer, implying that the candidate comprehends 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 violations. Prior to the policy position change issued by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, however, Michigan Medical Marijuana Facilities Licensing Act candidates need to be aware of the policy change, as they have a considerable quantity of resources at risk in not only obtaining the license, but in running their business. Despite The Fact That Medical Cannabis Facilities are functioning in complete compliance with Michigan Law, the operators, employees and investors could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Numerous individuals might rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law permitting the use of cannabis under specific strongly controlled circumstances. 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 view is that the Federal Government has said the use of marijuana is illegal and so, the States should not be able to undermine those regulations. Such is the age-old argument over Federalism and States' Rights. The answer is, the States have their own system of regulations that they are authorized to implement, independent 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, enabling the States to have their own set of laws, an outcome of what is typically called the "States' Rights" movement. However, where Federal Law and State Law are in absolute dispute, Federal Law may be implemented, even if some States have contrasting laws, because of this dual system. As a result, anyone applying for a facilities license under the Medical Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to get in touch with an attorney 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 permitted under the MMFLA.

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