Cannabis Prosecution Policy Change

AG Sessions Gets Rid Of Obama Administration Regulation Relating To Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions released 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 permitted by the voters. The new policy directive is problematic for a variety of reasons, and should cause worry for people who use medical cannabis in Michigan, or to individuals who dispense it.

Criminal Law Consequences. The policy change might lead to severe obstacles to the Cannabis industry, that has been progressively growing within the past 10 years. Up until the policy change on Tuesday, an increasing number of States defied Federal regulations and prohibitions on cannabis use for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have permitted recreational usage of cannabis, as Colorado and California have done, as examples. However, despite the fact that the law in Michigan permits the use of Medical Marijuana, those individuals who are currently permitted to possess, move and use marijuana legally under State law, are specifically breaking federal law, and those individuals could be prosecuted in Federal Court for their narcotics offenses.

Previously, the Obama Administration had produced a policy statement that, in States that had passed cannabis use laws, the Federal Government would look the other way, unless they found cannabis being sold on school grounds or in violation of other public law ordinances. The regulation allowed for the development of legalized use marijuana, both medical cannabis and recreational use of marijuana, including here in Michigan. Now, there are serious fears that the expansion movement in other States will quit as a result of a fear 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 marijuana industry, there are, rightfully many individuals who are scared 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 entirely ascertainable at this moment. The concern circles around the issue of whether the US Attorneys for the Eastern and Western District have an interest in reallocating limited 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 focus on heroin, fentanyl, and human trafficking, all of which are primary problems, particularly in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts suggest that it is not likely that the US Attorney will redirect those resources to start strongly prosecuting marijuana related companies.

However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, implying that the candidate recognizes that the operation of their facility or use of their license to participate in any way in the marijuana industry, is not permitted by Federal Law and that the United States Government could prosecute such a company for criminal offenses. Before the policy position change released by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act candidates need to be aware of the policy change, as they have a significant amount of resources at risk in not only acquiring the license, but in handling their establishment. 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. Several individuals may rightfully shake their head in confusion at these issues. One perspective is that, Michigan voters have passed a law okaying the usage of cannabis under certain strongly regulated conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can not authorize the usage of Medical Marijuana. The other perspective is that the Federal Government has said the use of cannabis is prohibited and so, the States should not have the ability to undermine those regulations. Such is the age-old debate over Federalism and States' Rights. The solution is, the States have their own system of regulations 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, allowing the States to have their own set of laws, a result of what is generally called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in explicit disagreement, Federal Law may be enforced, even if some States have contrasting laws, because of this dual system. As a result, anyone applying for a facilities license under the Medical Cannabis 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 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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