AG Sessions Removes Obama Administration Regulation Regarding Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions released a policy that directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, even in States where recreational and medicinal cannabis use has been approved by the voters. The new policy directive is problematic for a variety of reasons, and should create concern for individuals that use medical cannabis in Michigan, or to individuals who distribute it.
Criminal Law Consequences. The policy change might present severe difficulties to the Cannabis industry, that has been progressively expanding within the past decade. Up until the policy modification on Tuesday, an increasing amount of States defied Federal regulations and prohibitions on marijuana use for any reason, and have passed medical marijuana ordinances, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have accomplished, as examples. However, even though the law in Michigan permits the use of Medical Marijuana, those persons who are presently allowed to have, move and use cannabis legally under State law, are directly breaking federal law, and those individuals could be prosecuted in Federal Court for their narcotics violations.
Previously, the Obama Administration had put out a policy statement that, in States that had passed cannabis use laws, the Federal Government would look the other way, except if they found marijuana being sold on school properties or in violation of other public law directives. The protocol permitted the growth of permitted use marijuana, both medical marijuana and recreational usage of marijuana, including here in Michigan. Now, there are severe worries that the development movement in other States will quit as a result of a concern that there may be a Federal crackdown on the marijuana 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 engaged in the cannabis industry, there are, rightfully many individuals who are afraid of arrest and, worst of all, Federal forfeiture of money and their products.
Impact on Michigan. The effect 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 reallocating constrained resources to try medical cannabis facilities. The U.S. Attorney's Office has a limited budget and has to prioritize when and where to invest those resources. Recently, there has been a powerful push to target heroin, fentanyl, and human trafficking, all of which are significant 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 aggressively prosecuting cannabis associated facilities.
Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, implying that the candidate comprehends that the operation of their facility or usage of their license to participate in any way in the marijuana industry, is not authorized by Federal Law and that the United States Government could prosecute such an entity for illegal violations. Prior to the policy position change released by AG Sessions last Tuesday, the odds 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 considerable quantity of resources in jeopardy in not only acquiring the license, but in handling their establishment. Even if Medical Marijuana Facilities are operating in complete compliance with Michigan Law, the operators, employees and financiers could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Several people may rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law okaying the usage of marijuana under specific strongly controlled conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can't allow the usage of Medical Marijuana. The other perspective is that the Federal Government has said the usage of cannabis is prohibited and so, the States shouldn't have the ability to undermine those laws. Such is the age-old debate over Federalism and States' Rights. The answer is, the States have their own system of laws that they are permitted 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. However, where Federal Law and State Law are in direct disagreement, Federal Law may be enforced, even if some States have contrasting 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 contact a lawyer who can go over with you the possible criminal liability you may undergo in Federal Court should you open and operate any of the facilities allowed under the MMFLA.
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