Marijuana Prosecution Policy Change

AG Sessions Removes Obama Administration Policy Regarding Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for cannabis law offenses, even in States where recreational and medicinal marijuana usage has been authorized by the voters. The new policy directive is problematic for a variety of factors, and should create concern for people that utilize medical cannabis in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy modification could present serious difficulties to the Cannabis industry, that has been progressively growing over the past decade. Until the policy change on Tuesday, a growing number of States opposed Federal policies and prohibitions on cannabis use for any reason, and have passed medical marijuana ordinances, as we have here in Michigan, or they have granted recreational use of marijuana, as Colorado and California have accomplished, as examples. However, despite the fact that the law in Michigan allows the use of Medical Marijuana, those persons who are currently permitted to possess, transport and use marijuana legally under State law, are directly violating 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 marijuana usage laws, the Federal Government would look the other way, except if they found cannabis being sold on school properties or in violation of other public law ordinances. The regulation permitted the development of permitted use of cannabis, both medical marijuana and recreational use of marijuana, including here in Michigan. Now, there are severe worries that the development movement in other States will stop because of a fear that there may be a Federal crackdown on the cannabis industry. Given that there are central registries in States that have medical marijuana, and that in States that have approved recreational use, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many individuals who are afraid 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 completely ascertainable at this point. The question circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reapportioning limited resources to prosecute medical cannabis establishments. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to devote those resources. Lately, there has been a strong drive to target heroin, fentanyl, and human trafficking, all of which are major concerns, particularly in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts propose that it is not likely that the US Attorney will refocus those resources to start 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 candidate recognizes that the operation of their facility or usage of their license to take part in any way in the cannabis business, is not authorized by Federal Law and that the United States Government could prosecute such a company for illegal offenses. Before the policy position revision provided by AG Sessions last Tuesday, the chances 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 substantial quantity of resources at risk in not only obtaining the license, but in handling their establishment. Even if Medical Cannabis Facilities are operating in complete compliance with Michigan Law, the owners, workers and financiers 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 perspective is that, Michigan voters have passed a law permitting the use of marijuana under specific strongly regulated circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can't permit the usage of Medical Cannabis. The other view is that the Federal Government has said the usage of marijuana is illegal and so, the States should not have the ability to undermine those laws. Such is the age-old dispute over Federalism and States' Rights. The answer is, the States have their own system of regulations that they are permitted to implement, independent 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, authorizing the States to have their own set of laws, an outcome of what is typically called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in explicit dispute, Federal Law may be implemented, 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 contact an attorney who can go over with you the potential criminal liability you may undergo in Federal Court should you open and operate any of the facilities authorized under the mmfla.