Marijuana Prosecution Policy Change

AG Sessions Gets Rid Of Obama Administration Policy Relating To Prosecution of Federal Cannabis Laws. On Tuesday, Attorney General Jeff Sessions issued a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for cannabis law violations, even in States where recreational and medicinal marijuana use has been approved by the voters. The new policy directive is troublesome for a variety of reasons, and should create concern for people that use medical marijuana in Michigan, or to those who distribute it.

Criminal Law Consequences. The policy modification could pose major difficulties to the Cannabis industry, which has been gradually expanding over the past 10 years. Up until the policy revision on Tuesday, a growing number of States defied Federal regulations and prohibitions on cannabis use for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have granted recreational use of cannabis, as Colorado and California have done, as examples. Nevertheless, despite the fact that the legislation in Michigan permits the usage of Medical Marijuana, those persons who are presently allowed to possess, transport and usage 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 cannabis usage laws, the Federal Government would disregard, except if they found cannabis being sold on school grounds or in violation of other public law directives. The policy enabled the expansion of permitted use marijuana, both medical marijuana and recreational use marijuana, including here in Michigan. Now, there are major fears that the development movement in other States will stop as a result of a fear that there may be a Federal crackdown on the marijuana 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 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 crops.

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 cannabis facilities. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to invest those resources. Recently, there has been a powerful drive to focus on heroin, fentanyl, and human trafficking, all of which are major issues, specifically in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts suggest that it is unlikely that the US Attorney will redirect those resources to begin strongly prosecuting cannabis associated facilities.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, suggesting that the candidate comprehends that the operation of their facility or use of their license to take part in any way in the marijuana business, is not authorized by Federal Law and that the United States Government could prosecute such an entity for illegal violations. Prior to the policy position change released by AG Sessions last Tuesday, the chances of such prosecutions were limited. Now, nevertheless, Michigan Medical Cannabis Facilities Licensing Act candidates need to be familiar with the policy change, as they have a considerable quantity of funding at risk in not only obtaining the license, but in handling their establishment. Despite The Fact That Medical Marijuana Facilities are running in total compliance with Michigan Law, the owners, employees and financiers could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Several people may rightfully shake their head in confusion at these concerns. One perspective is that, Michigan voters have passed a law permitting the use of cannabis under certain highly regulated circumstances. Why should the Federal Government be able to come in and tell the State of Michigan they can not 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, permitting 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 explicit dispute, 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 Marijuana 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 be subject to in Federal Court should you establish and operate any of the facilities authorized under the MMFLA.

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