Marijuana Prosecution Policy Shift

AG Sessions Removes Obama Administration Policy Regarding Prosecution of Federal Cannabis Laws. 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 cannabis usage has been authorized by the voters. The new policy directive is troublesome for a variety of reasons, and ought to cause concern for people who utilize medical marijuana in Michigan, or to individuals who dispense it.

Criminal Law Consequences. The policy revision could present major difficulties to the Cannabis industry, which has been gradually growing within the past 10 years. 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 permitted recreational use of cannabis, as Colorado and California have done, as examples. However, despite the fact that the law in Michigan enables the usage of Medical Cannabis, those individuals who are currently allowed to possess, transport and usage cannabis lawfully under State law, are specifically disobeying federal law, and those persons could be prosecuted in Federal Court for their narcotics offenses.

Previously, the Obama Administration had presented a policy statement that, in States that had passed cannabis usage laws, the Federal Government would look the other way, except if they found marijuana being sold on school grounds or in violation of other public law regulations. The regulation enabled the expansion of legalized usage of marijuana, both medical cannabis and recreational usage of cannabis, including here in Michigan. Now, there are major fears that the expansion movement in other States will cease as a result of a worry 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 usage, 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 effect to Michigan, like other States, is not fully ascertainable at this moment. The concern circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning constrained resources to prosecute medical cannabis 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 drive to focus on heroin, fentanyl, and human trafficking, all of which are major problems, especially in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts indicate that it is unlikely that the US Attorney will redirect those resources to begin aggressively prosecuting cannabis related companies.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, implying that the applicant understands that the operation of their facility or usage 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 organization for criminal violations. Prior to the policy position revision issued 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 quantity of capital in jeopardy in not only getting the license, but in running their establishment. Even if Medical Marijuana Facilities are running 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. Many people may rightfully shake their head in confusion at these concerns. One perspective is that, Michigan voters have passed a law okaying the usage of cannabis under specific strongly controlled conditions. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not permit the use of Medical Marijuana. The other perspective is that the Federal Government has said the use of cannabis is illegal and so, the States should not have the ability to undermine those regulations. 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 authorized to execute, independent and apart from those passed and enforced 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, a result of what is commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in absolute disagreement, 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 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.