Marijuana Prosecution Regulation Shift

AG Sessions Gets Rid Of Obama Administration Regulation Relating To Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions released a policy which 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 permitted by the voters. The new policy directive is problematic for a variety of factors, and should create concern for individuals who utilize medical marijuana in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy modification could present severe challenges to the Marijuana industry, that has been progressively progressing within the past decade. 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 ordinances, as we have here in Michigan, or they have permitted recreational usage of marijuana, as Colorado and California have done, as examples. Nevertheless, even though the legislation in Michigan permits the use of Medical Cannabis, those persons who are currently allowed to possess, transport and usage marijuana legally under State law, are specifically disobeying federal law, and those individuals could be prosecuted in Federal Court for their narcotics violations.

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 uncovered marijuana being sold on school properties or in violation of other public policy regulations. The regulation allowed for the development of permitted use marijuana, both medical marijuana and recreational use of cannabis, including here in Michigan. Now, there are major worries that the development movement in other States will cease 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 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 people who are afraid of arrest and, worst of all, Federal forfeiture of money and their yields.

Impact on Michigan. The effect to Michigan, like other States, is not completely ascertainable at this moment. The question circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reallocating limited resources to try medical marijuana establishments. 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 strong drive to focus on heroin, fentanyl, and human trafficking, all of which are major concerns, specifically in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts propose that it is unlikely that the US Attorney will redirect 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 use of their license to participate in any way in the marijuana industry, is not authorized by Federal Law and that the United States Government could prosecute such a company for criminal offenses. Prior to the policy position revision provided by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Cannabis Facilities Licensing Act applicants need to be familiar with the policy change, as they have a significant amount of resources in jeopardy in not only getting the license, but in running their establishment. Even if Medical Marijuana Facilities are functioning in complete compliance with Michigan Law, the owners, employees and financiers could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Numerous people may rightfully shake their head in confusion at these issues. One perspective is that, Michigan voters have passed a law okaying the use of cannabis under specific strongly regulated conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can't authorize the use of Medical Cannabis. The other view is that the Federal Government has said the use of marijuana is unlawful and so, the States shouldn't be able to undermine those regulations. Such is the age-old argument over Federalism and States' Rights. The solution is, the States have their own system of laws that they are permitted to implement, 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, allowing the States to have their own set of laws, a result of what is typically called the "States' Rights" movement. However, where Federal Law and State Law are in direct disagreement, Federal Law may be implemented, 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 get in touch with a lawyer who can go over 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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