AG Sessions Eliminates Obama Administration Policy Regarding Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions issued 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 approved by the voters. The new policy directive is problematic for a number of reasons, and ought to create concern for individuals that use medical marijuana in Michigan, or to those who distribute it.
Criminal Law Consequences. The policy modification could lead to severe difficulties to the Marijuana industry, which has been steadily expanding within the past decade. Up until the policy modification on Tuesday, an increasing number of States opposed Federal guidelines and prohibitions on cannabis 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 accomplished, as examples. However, even though the law in Michigan enables the usage of Medical Marijuana, those persons who are presently permitted to have, move and usage marijuana lawfully under State law, are directly violating 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 marijuana use laws, the Federal Government would disregard, unless they uncovered cannabis being sold on school properties or in violation of other public policy regulations. The regulation allowed for the growth of legalized use cannabis, both medical cannabis and recreational use of cannabis, including here in Michigan. Now, there are serious 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 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 marijuana industry, there are, rightfully many individuals who are scared of arrest and, worst of all, Federal forfeiture of money and their plants.
Impact on Michigan. The effect to Michigan, like other States, is not entirely ascertainable at this point. The concern circles around the problem of whether the US Attorneys for the Eastern and Western District are interested in reapportioning limited resources to try medical marijuana establishments. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to devote those resources. Lately, there has been a powerful 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 indicate that it is not likely that the US Attorney will refocus those resources to begin aggressively prosecuting cannabis related facilities.
However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, indicating that the applicant comprehends that the operation of their facility or usage 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 illegal offenses. Prior to the policy position change released by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act applicants need to be aware of the policy change, as they have a significant amount of resources at risk in not only acquiring the license, but in handling their business. Despite The Fact That Medical Cannabis Facilities are functioning in total compliance with Michigan Law, the operators, workers and financiers could all be subject to Federal prosecution.
Dispute of Laws and the 10th Amendment. Many individuals may rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law allowing the use of marijuana under certain highly regulated conditions. Why should the Federal Government have the ability to come in and tell the State of Michigan they can't allow the usage of Medical Marijuana. The other view is that the Federal Government has said the usage of cannabis is unlawful and so, the States shouldn't be able to undermine those laws. 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 authorized to execute, 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, authorizing the States to have their own set of laws, a result of what is typically 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. As a result, anyone applying for a facilities license under the Medical Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact an attorney who can go over with you the potential 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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