Cannabis Prosecution Policy Change

AG Sessions Eliminates Obama Administration Policy Regarding Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions released a policy which guides 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 troublesome for a variety of factors, and ought to create worry for people who utilize medical cannabis in Michigan, or to individuals who dispense it.

Criminal Law Consequences. The policy modification could lead to severe challenges to the Cannabis industry, which has been progressively expanding over the past 10 years. Until the policy modification on Tuesday, an increasing amount of States defied Federal guidelines and prohibitions on cannabis use for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have granted recreational usage of cannabis, as Colorado and California have accomplished, as examples. However, despite the fact that the legislation in Michigan enables the use of Medical Marijuana, those persons who are currently permitted to have, move and usage marijuana legally under State law, are directly violating federal law, and those individuals 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 usage laws, the Federal Government would disregard, except if they found marijuana being sold on school grounds or in violation of other public law directives. The protocol enabled the development of permitted use of cannabis, both medical marijuana and recreational use cannabis, including here in Michigan. Now, there are major fears that the development movement in other States will quit as a result of a worry 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 cannabis, and that in States that have authorized recreational use, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many people 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 point. The question circles around the issue of whether the US Attorneys for the Eastern and Western District have an interest 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 devote those resources. Recently, there has been a powerful push to target heroin, fentanyl, and human trafficking, all of which are significant concerns, especially 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 begin strongly prosecuting cannabis related companies.

However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, implying that the applicant understands that the operation of their facility or use of their license to take part in any way in the marijuana business, is not authorized by Federal Law and that the United States Government could prosecute such a company for illegal violations. Before the policy position change provided by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act applicants need to be familiar with the policy change, as they have a considerable quantity of funding at risk in not only acquiring the license, but in operating their business. Even if Medical Marijuana Facilities are functioning in complete compliance with Michigan Law, the owners, employees and investors could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Numerous individuals may rightfully shake their head in confusion at these concerns. One view is that, Michigan voters have passed a law okaying the usage of cannabis under specific highly controlled conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can not allow the use of Medical Marijuana. The other view is that the Federal Government has said the use of cannabis is unlawful and so, the States shouldn't have the ability to undermine those laws. Such is the age-old debate over Federalism and States' Rights. The solution is, the States have their own system of laws that they are allowed to implement, 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, authorizing the States to have their own set of laws, an outcome of what is generally called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in direct disagreement, Federal Law may be enforced, 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 an attorney who can go over with you the possible 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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