Marijuana Prosecution Policy Change

AG Sessions Eliminates Obama Administration Regulation Relating To Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions released 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 use has been permitted by the voters. The new policy directive is problematic for a variety of reasons, and should create concern for people that use medical cannabis in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy change might pose major challenges to the Marijuana industry, which has been gradually expanding over the past decade. Up until the policy revision on Tuesday, a growing number of States opposed Federal regulations and prohibitions on marijuana usage for any reason, and have passed medical marijuana statutes, as we have here in Michigan, or they have permitted recreational usage 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 individuals who are presently permitted to have, transport and usage marijuana legally under State law, are directly disobeying federal law, and those individuals 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 cannabis being sold on school grounds or in violation of other public law regulations. The policy permitted the growth of legalized use cannabis, both medical cannabis and recreational usage of cannabis, including here in Michigan. Now, there are serious concerns that the development movement in other States will cease because of a fear 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 cannabis industry, there are, rightfully many individuals who are afraid of arrest and, worst of all, Federal forfeiture of money and their yields.

Impact on Michigan. The impact to Michigan, like other States, is not entirely 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 prosecute medical marijuana establishments. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to invest those resources. Lately, there has been a strong push 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 not likely that the US Attorney will redirect those resources to start aggressively prosecuting marijuana related facilities.

Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, suggesting that the candidate comprehends that the operation of their facility or use of their license to take part in any way in the cannabis industry, is not permitted by Federal Law and that the United States Government could prosecute such a company for illegal violations. Prior to the policy position change released by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Cannabis Facilities Licensing Act candidates need to be aware of the policy change, as they have a substantial amount of resources at risk in not only getting the license, but in operating their establishment. Even if Medical Cannabis Facilities are operating in total compliance with Michigan Law, the owners, 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 perspective is that, Michigan voters have passed a law okaying the usage of marijuana under specific strongly regulated conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can not authorize the usage of Medical Marijuana. The other perspective is that the Federal Government has said the use of cannabis is prohibited and so, the States should not be able 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 authorized to execute, separate and apart from those passed and implemented 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 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 Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to speak to a lawyer who can discuss with you the potential criminal liability you may undergo in Federal Court should you establish and operate any of the facilities permitted under the MMFLA.

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