AG Sessions Removes Obama Administration Regulation Regarding Prosecution of Federal Cannabis Laws. On Tuesday, Attorney General Jeff Sessions issued a policy that directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, 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 factors, and ought to create concern for individuals who use medical marijuana in Michigan, or to individuals who dispense it.
Criminal Law Consequences. The policy revision might pose severe difficulties to the Cannabis industry, which has been progressively progressing within the past 10 years. Up until the policy revision on Tuesday, an increasing amount of States defied Federal regulations and prohibitions on marijuana usage for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have permitted recreational usage of cannabis, as Colorado and California have accomplished, as examples. Nevertheless, even though the law in Michigan allows the use of Medical Marijuana, those persons who are presently permitted to have, transport and usage cannabis 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 put out a policy statement that, in States that had passed cannabis use laws, the Federal Government would disregard, unless they discovered marijuana being sold on school grounds or in violation of other public policy ordinances. The regulation allowed for the growth of permitted usage of marijuana, both medical cannabis and recreational use of marijuana, including here in Michigan. Now, there are serious fears that the expansion movement in other States will cease 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 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 afraid of arrest and, worst of all, Federal forfeiture of money and their crops.
Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this point. The concern circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reallocating limited resources to try medical cannabis facilities. The U.S. Attorney's Office has a limited budget and has to prioritize when and where to devote those resources. Lately, there has been a strong drive to focus on heroin, fentanyl, and human trafficking, all of which are primary problems, especially 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 start strongly prosecuting marijuana associated facilities.
However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, suggesting 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 authorized by Federal Law and that the United States Government could prosecute such a company for criminal violations. Before the policy position change issued by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act candidates need to be aware of the policy change, as they have a significant quantity of funding in jeopardy in not only obtaining the license, but in running their establishment. Even if Medical Cannabis Facilities are functioning in complete compliance with Michigan Law, the operators, workers and investors could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Several individuals may rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law okaying the usage of cannabis under specific strongly controlled conditions. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not allow the use of Medical Cannabis. The other perspective is that the Federal Government has said the use of marijuana is prohibited and so, the States shouldn't be able to undermine those laws. Such is the age-old dispute over Federalism and States' Rights. The solution is, the States have their own system of regulations that they are permitted to implement, independent 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, allowing the States to have their own set of laws, a result of what is commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in direct dispute, 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 Cannabis Facilities Licensing Act, needs to not only take the waiver seriously, but needs to speak to an attorney who can go over with you the potential criminal liability you may be subject to in Federal Court should you establish and run any of the facilities permitted under the MMFLA.
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