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 directs local U.S. Attorneys to prosecute federal criminal offenses for cannabis law offenses, even in States where recreational and medicinal marijuana usage has been approved by the voters. The new policy directive is problematic for a variety of reasons, and should create worry for people that use medical marijuana in Michigan, or to those who distribute it.
Criminal Law Consequences. The policy modification could lead to serious difficulties to the Cannabis industry, that has been steadily growing over the past decade. Up until the policy revision on Tuesday, a growing number of States resisted Federal policies and prohibitions on cannabis use for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have granted recreational use of cannabis, as Colorado and California have accomplished, as examples. Nevertheless, even though the legislation in Michigan permits the usage of Medical marijuana, those individuals who are presently allowed to possess, transport and use cannabis legally under State law, are specifically violating federal law, and those individuals could be prosecuted in Federal Court for their narcotics infractions.
Previously, the Obama Administration had produced a policy statement that, in States that had passed cannabis usage laws, the Federal Government would disregard, unless they discovered cannabis being sold on school properties or in violation of other public policy directives. The policy enabled the expansion of legalized usage of marijuana, both medical marijuana and recreational use cannabis, including here in Michigan. Now, there are serious worries that the expansion movement in other States will stop because of a concern 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 engaged in the cannabis industry, there are, rightfully many people who are afraid of arrest and, worst of all, Federal forfeiture of money and their plants.
Impact on Michigan. The impact to Michigan, like other States, is not completely ascertainable at this point. The question circles around the concern of whether the US Attorneys for the Eastern and Western District are interested in reapportioning limited resources to prosecute medical cannabis facilities. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to devote those resources. Lately, there has been a strong drive to target heroin, fentanyl, and human trafficking, all of which are significant concerns, 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 redirect those resources to begin aggressively prosecuting marijuana associated facilities.
However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, implying that the candidate recognizes that the operation of their facility or usage of their license to take part in any way in the marijuana business, is not permitted by Federal Law and that the United States Government could prosecute such a company for criminal offenses. Before the policy position change released by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, however, Michigan Medical Marijuana Facilities Licensing Act candidates need to be familiar with the policy change, as they have a substantial amount of capital in jeopardy in not only acquiring the license, but in operating their establishment. Despite The Fact That Medical Marijuana Facilities are functioning in total compliance with Michigan Law, the operators, workers and financiers could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Numerous people might rightfully shake their head in confusion at these issues. One view is that, Michigan voters have passed a law permitting the usage of marijuana under specific strongly regulated 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 usage of cannabis is unlawful and so, the States shouldn't have the ability 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 allowed 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, an outcome of what is commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in explicit disagreement, Federal Law may be executed, 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 get in touch with a lawyer who can go over with you the possible 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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