AG Sessions Removes Obama Administration Policy 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 cannabis usage has been approved by the voters. The new policy directive is troublesome for a number of reasons, and ought to create worry for individuals who utilize medical cannabis in Michigan, or to individuals who distribute it.
Criminal Law Consequences. The policy modification could present serious challenges to the Marijuana industry, that has been steadily expanding over the past 10 years. Up until the policy change on Tuesday, an increasing number of States defied Federal regulations and prohibitions on marijuana use for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have permitted recreational use of cannabis, as Colorado and California have done, as examples. However, even though the legislation in Michigan allows the usage of Medical Cannabis, those persons who are presently allowed to possess, transport and use marijuana lawfully under State law, are specifically breaking federal law, and those persons could be prosecuted in Federal Court for their narcotics violations.
Previously, the Obama Administration had presented 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 properties or in violation of other public law ordinances. The protocol permitted the development of permitted use cannabis, both medical marijuana and recreational use marijuana, including here in Michigan. Now, there are major worries that the development movement in other States will cease as a result of a worry that there may be a Federal crackdown on the cannabis industry. Dued to the fact 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 individuals who are scared 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 problem of whether the US Attorneys for the Eastern and Western District are interested 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 devote those resources. Recently, there has been a powerful drive to target heroin, fentanyl, and human trafficking, all of which are primary concerns, particularly 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 companies.
However, 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 cannabis business, is not allowed by Federal Law and that the United States Government could prosecute such an entity for illegal violations. Before the policy position change issued by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Cannabis 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 operating their business. Even if Medical Cannabis Facilities are running in complete compliance with Michigan Law, the operators, employees and investors could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Many people might rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law allowing 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't authorize the usage of Medical Marijuana. The other perspective is that the Federal Government has said the use of cannabis is unlawful and so, the States shouldn't have the ability to undermine those regulations. Such is the age-old debate over Federalism and States' Rights. The solution is, the States have their own system of regulations that they are permitted to execute, 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, authorizing the States to have their own set of laws, an outcome of what is generally called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in absolute dispute, 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 Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact an attorney who can discuss with you the potential criminal liability you may be subject to in Federal Court should you open and run any of the facilities permitted under the MMFLA.
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