Cannabis 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 marijuana law violations, even in States where recreational and medicinal cannabis usage has been permitted by the voters. The new policy directive is troublesome for a variety of factors, and should create worry for people that use medical marijuana in Michigan, or to those who distribute it.

Criminal Law Consequences. The policy revision might present serious obstacles to the Marijuana industry, which has been steadily progressing over the past decade. Up until the policy change on Tuesday, an increasing number of States opposed Federal policies and prohibitions on marijuana use for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have granted recreational use of marijuana, as Colorado and California have done, as examples. However, even though the law in Michigan allows the use of Medical Marijuana, those individuals who are presently allowed to possess, transport and usage marijuana lawfully under State law, are directly breaking federal law, and those persons 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 use 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 regulations. The regulation allowed for the growth of legalized use cannabis, both medical marijuana and recreational use of cannabis, including here in Michigan. Now, there are major fears that the development movement in other States will cease because 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 cannabis, and that in States that have approved recreational usage, corporate documents denoting businesses that are engaged in the cannabis industry, there are, rightfully many people who are scared of arrest and, worst of all, Federal forfeiture of money and their yields.

Impact on Michigan. The effect to Michigan, like other States, is not entirely ascertainable at this moment. The question circles around the issue of whether the US Attorneys for the Eastern and Western District are interested 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 spend those resources. Recently, there has been a powerful push to focus on heroin, fentanyl, and human trafficking, all of which are major issues, especially 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 start strongly prosecuting cannabis associated companies.

However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page disclaimer, suggesting that the candidate understands that the operation of their facility or usage 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 offenses. Before the policy position change released by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act candidates need to be familiar with the policy change, as they have a significant amount of funding in jeopardy in not only getting the license, but in operating their business. Despite The Fact That Medical Cannabis Facilities are functioning in total compliance with Michigan Law, the operators, employees and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Many individuals may rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law okaying the use of cannabis under specific highly regulated conditions. Why should the Federal Government have the ability 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 usage of marijuana is unlawful and so, the States shouldn't be able to undermine those laws. Such is the age-old dispute over Federalism and States' Rights. The solution 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, 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 absolute conflict, Federal Law may be executed, even if some States have conflicting laws, because of this dual system. Therefore, 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 discuss with you the possible criminal liability you may undergo in Federal Court should you open and run any of the facilities authorized under the MMFLA.

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