Marijuana Prosecution Regulation Change

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

Criminal Law Consequences. The policy revision might present major difficulties to the Cannabis industry, that has been gradually growing within the past 10 years. Up until the policy revision on Tuesday, a growing amount of States resisted Federal guidelines and prohibitions on marijuana use for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have permitted recreational use of marijuana, as Colorado and California have done, as examples. However, despite the fact that the law in Michigan permits the usage of Medical Cannabis, those persons who are currently allowed to possess, move and use cannabis legally under State law, are directly violating federal law, and those persons could be prosecuted in Federal Court for their narcotics offenses.

Previously, the Obama Administration had presented a policy statement that, in States that had passed marijuana use laws, the Federal Government would look the other way, except if they discovered cannabis being sold on school grounds or in violation of other public law regulations. The protocol permitted the expansion of legalized use marijuana, both medical marijuana and recreational use of marijuana, including here in Michigan. Now, there are major fears that the expansion movement in other States will stop as a result 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 marijuana, and that in States that have permitted recreational usage, corporate documents denoting businesses that are engaged in the marijuana industry, there are, rightfully many people who are scared of arrest and, worst of all, Federal forfeiture of money and their crops.

Impact on Michigan. The impact to Michigan, like other States, is not entirely ascertainable at this point. The concern circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning limited resources to prosecute medical marijuana establishments. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to spend those resources. Lately, there has been a powerful drive to target heroin, fentanyl, and human trafficking, all of which are significant concerns, specifically in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts propose that it is unlikely that the US Attorney will refocus those resources to begin aggressively prosecuting cannabis related companies.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, indicating that the candidate comprehends that the operation of their facility or usage of their license to take part in any way in the marijuana business, is not allowed 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 limited. Now, nevertheless, Michigan Medical Cannabis Facilities Licensing Act applicants need to be aware of the policy change, as they have a significant quantity of capital in jeopardy in not only acquiring the license, but in operating their business. Despite The Fact That Medical Cannabis Facilities are operating in total compliance with Michigan Law, the owners, employees and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Several people might rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law allowing the use of marijuana under certain strongly controlled circumstances. 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 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 dispute over Federalism and States' Rights. The solution is, the States have their own system of laws that they are permitted 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, 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 explicit dispute, 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 Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to get in touch with 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 allowed under the mmfla.