Marijuana Prosecution Policy Change

AG Sessions Eliminates Obama Administration Regulation Regarding Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions released a policy which directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, even in States where recreational and medicinal marijuana usage has been approved by the voters. The new policy directive is troublesome for a number of reasons, and ought to cause concern for individuals that utilize medical marijuana in Michigan, or to those who distribute it.

Criminal Law Consequences. The policy modification might pose severe challenges to the Cannabis industry, that has been steadily expanding over the past decade. Until the policy modification on Tuesday, a growing number of States resisted Federal regulations and prohibitions on marijuana use for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have permitted recreational use of cannabis, as Colorado and California have accomplished, as examples. However, even though the law in Michigan enables the use of Medical Marijuana, those persons who are presently allowed to possess, move and use marijuana lawfully under State law, are specifically disobeying federal law, and those persons could be prosecuted in Federal Court for their narcotics infractions.

Previously, the Obama Administration had produced a policy statement that, in States that had passed marijuana usage laws, the Federal Government would disregard, unless they discovered marijuana being sold on school properties or in violation of other public law ordinances. The protocol permitted the growth of legalized usage of cannabis, both medical cannabis and recreational use cannabis, including here in Michigan. Now, there are serious concerns that the development movement in other States will cease because 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 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 crops.

Impact on Michigan. The effect to Michigan, like other States, is not completely ascertainable at this moment. The concern circles around the concern of whether the US Attorneys for the Eastern and Western District are interested in reallocating limited resources to try medical cannabis facilities. The U.S. Attorney's Office has a limited 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 significant problems, particularly in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts indicate that it is not likely that the US Attorney will refocus those resources to begin strongly prosecuting marijuana associated companies.

However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page disclaimer, implying that the candidate recognizes that the operation of their facility or use of their license to take part in any way in the cannabis business, is not allowed by Federal Law and that the United States Government could prosecute such an organization for illegal offenses. Prior to the policy position change issued by AG Sessions last Tuesday, the chances 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 considerable amount of funding at risk in not only obtaining the license, but in handling their establishment. Even if Medical Cannabis Facilities are functioning in complete compliance with Michigan Law, the owners, workers and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Numerous 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 strongly controlled circumstances. Why should the Federal Government be able to come in and tell the State of Michigan they can not allow the usage of Medical Cannabis. The other perspective is that the Federal Government has said the use of marijuana is prohibited and so, the States should not have the ability to undermine those regulations. Such is the age-old debate over Federalism and States' Rights. The solution is, the States have their own system of laws that they are permitted to execute, 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, allowing 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 direct disagreement, Federal Law may be enforced, even if some States have contrasting 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 an attorney who can discuss with you the possible criminal liability you may undergo in Federal Court should you establish and run any of the facilities authorized under the MMFLA.

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