Marijuana Prosecution Policy Change

AG Sessions Removes Obama Administration Policy Relating To Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions issued a policy that directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, even in States where recreational and medicinal cannabis usage has been authorized by the voters. The new policy directive is troublesome for a variety of reasons, and should create concern for individuals who use medical marijuana in Michigan, or to individuals who dispense it.

Criminal Law Consequences. The policy revision could lead to severe difficulties to the Cannabis industry, that has been steadily growing within the past 10 years. Up until the policy revision on Tuesday, an increasing number of States defied Federal guidelines and prohibitions on cannabis use for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have accomplished, as examples. Nevertheless, despite the fact that the law in Michigan allows the usage of Medical Cannabis, those persons who are presently permitted to possess, move and use marijuana legally under State law, are specifically disobeying federal law, and those persons could be prosecuted in Federal Court for their narcotics violations.

Previously, the Obama Administration had presented a policy statement that, in States that had passed cannabis use laws, the Federal Government would look the other way, unless they discovered cannabis being sold on school properties or in violation of other public policy regulations. The policy permitted the development of legalized use cannabis, both medical cannabis and recreational use cannabis, including here in Michigan. Now, there are serious worries that the expansion movement in other States will stop because of a worry that there may be a Federal crackdown on the marijuana industry. Dued to the fact that there are central registries in States that have medical cannabis, and that in States that have permitted recreational use, corporate documents denoting businesses that are participated in the marijuana industry, there are, rightfully many people who are afraid of arrest and, worst of all, Federal forfeiture of money and their products.

Impact on Michigan. The effect to Michigan, like other States, is not entirely ascertainable at this point. The question circles around the problem of whether the US Attorneys for the Eastern and Western District have an interest in reallocating limited resources to prosecute medical marijuana facilities. The U.S. Attorney’s Office has a finite budget and has to prioritize when and where to invest those resources. Lately, there has been a strong push to target heroin, fentanyl, and human trafficking, all of which are significant concerns, 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 refocus those resources to start strongly prosecuting marijuana associated companies.

Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page disclaimer, suggesting that the candidate recognizes 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 illegal violations. Prior to the policy position revision issued by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, however, Michigan Medical Cannabis Facilities Licensing Act candidates need to be familiar with the policy change, as they have a substantial amount of capital in jeopardy in not only obtaining the license, but in running their establishment. Even if Medical Marijuana Facilities are operating in complete compliance with Michigan Law, the operators, workers and financiers could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Many people may rightfully shake their head in confusion at these concerns. One view is that, Michigan voters have passed a law allowing the usage of cannabis under specific highly controlled circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can’t authorize 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 shouldn’t have the ability to undermine those regulations. Such is the age-old argument over Federalism and States’ Rights. The answer is, the States have their own system of regulations that they are allowed 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, 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 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 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 be subject to in Federal Court should you establish and operate any of the facilities permitted under the MMFLA.

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