AG Sessions Removes Obama Administration Regulation Regarding Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy which guides local U.S. Attorneys to prosecute federal criminal offenses for marijuana law violations, even in States where recreational and medicinal marijuana use has been permitted by the voters. The new policy directive is troublesome for a variety of reasons, and ought to create worry for people that use medical cannabis in Michigan, or to individuals who dispense it.
Criminal Law Consequences. The policy change could lead to severe difficulties to the Marijuana industry, that has been steadily growing over the past 10 years. Until the policy revision on Tuesday, a growing amount of States defied Federal guidelines 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 accomplished, as examples. Nevertheless, despite the fact that the law in Michigan allows the use of Medical Marijuana, those individuals who are currently allowed to possess, transport and usage cannabis lawfully under State law, are specifically violating federal law, and those individuals could be prosecuted in Federal Court for their narcotics offenses.
Previously, the Obama Administration had put out a policy statement that, in States that had passed cannabis usage laws, the Federal Government would look the other way, except if they discovered cannabis being sold on school grounds or in violation of other public policy ordinances. The policy enabled the growth of permitted usage of cannabis, both medical cannabis and recreational use of marijuana, including here in Michigan. Now, there are major concerns that the expansion movement in other States will quit because of a concern 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 authorized recreational usage, corporate documents denoting businesses that are engaged in the cannabis industry, there are, rightfully many individuals who are scared 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 problem of whether the US Attorneys for the Eastern and Western District are interested in reapportioning limited resources to prosecute medical marijuana facilities. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to devote those resources. Recently, there has been a powerful drive to target 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 refocus those resources to begin aggressively prosecuting cannabis associated companies.
Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page disclaimer, suggesting that the candidate understands that the operation of their facility or use of their license to participate in any way in the cannabis business, is not allowed by Federal Law and that the United States Government could prosecute such a company for criminal violations. Prior to the policy position revision issued 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 quantity of funding at risk in not only obtaining the license, but in handling their business. Even if Medical Marijuana Facilities are operating in total compliance with Michigan Law, the owners, employees and investors could all be subject to Federal prosecution.
Dispute of Laws and the 10th Amendment. Several people might rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law permitting the use of cannabis under certain strongly 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 cannabis is illegal and so, the States should not be able to undermine those laws. Such is the age-old argument over Federalism and States' Rights. The answer is, the States have their own system of laws that they are authorized to implement, 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, permitting 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 conflicting laws, because of this dual system. As a result, 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 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 allowed under the MMFLA.
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