Marijuana Prosecution Regulation Shift

AG Sessions Removes Obama Administration Regulation Regarding Prosecution of Federal Marijuana Laws. 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 marijuana use has been approved by the voters. The new policy directive is problematic for a variety of reasons, and should create concern for people who utilize medical marijuana in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy change might lead to major challenges to the Cannabis industry, that has been steadily growing within the past decade. Up until the policy modification on Tuesday, an increasing amount of States opposed Federal policies and prohibitions on marijuana use for any reason, and have passed medical marijuana ordinances, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have done, as examples. However, even though the legislation in Michigan enables the usage of Medical Cannabis, those individuals who are presently permitted to have, transport and use cannabis legally under State law, are directly disobeying federal law, and those individuals could be prosecuted in Federal Court for their narcotics infractions.

Previously, the Obama Administration had presented a policy statement that, in States that had passed cannabis use laws, the Federal Government would disregard, unless they found cannabis being sold on school grounds or in violation of other public law ordinances. The protocol permitted the growth of permitted use of cannabis, both medical cannabis and recreational use marijuana, including here in Michigan. Now, there are severe worries that the expansion movement in other States will cease as a result of a concern 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 authorized recreational usage, corporate documents denoting businesses that are engaged in the marijuana industry, there are, rightfully many individuals who are afraid of arrest and, worst of all, Federal forfeiture of money and their yields.

Impact on Michigan. The impact to Michigan, like other States, is not completely ascertainable at this point. 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 establishments. The U.S. Attorney's Office has a limited budget and has to prioritize when and where to invest those resources. Lately, there has been a powerful drive to target heroin, fentanyl, and human trafficking, all of which are significant problems, specifically 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 redirect those resources to begin aggressively prosecuting marijuana related facilities.

Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page disclaimer, indicating that the applicant recognizes that the operation of their facility or use of their license to participate in any way in the marijuana business, is not permitted by Federal Law and that the United States Government could prosecute such an organization for criminal violations. Before the policy position change released 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 substantial amount of resources at risk in not only acquiring the license, but in operating their establishment. Despite The Fact That Medical Cannabis Facilities are operating in total compliance with Michigan Law, the owners, workers and investors could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Several individuals might rightfully shake their head in confusion at these issues. One view is that, Michigan voters have passed a law okaying the use of marijuana under certain highly regulated circumstances. Why should the Federal Government be able 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 unlawful and so, the States should not be able to undermine those laws. Such is the age-old argument over Federalism and States' Rights. The solution is, the States have their own system of regulations that they are authorized to implement, separate and apart from those passed and executed 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 commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in absolute 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 contact a lawyer who can discuss with you the possible criminal liability you may be subject to in Federal Court should you establish and run any of the facilities permitted under the mmfla.