AG Sessions Removes Obama Administration Policy Relating To Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy which directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana 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 number of factors, and ought to create worry for individuals who use medical marijuana in Michigan, or to those who distribute it.
Criminal Law Consequences. The policy change might lead to severe obstacles to the Cannabis industry, that has been gradually progressing within the past 10 years. Until the policy change on Tuesday, an increasing amount of States resisted Federal guidelines and prohibitions on marijuana use for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have permitted recreational use of marijuana, as Colorado and California have accomplished, as examples. However, despite the fact that the law in Michigan enables the use of Medical Cannabis, those persons who are presently permitted to possess, move and use marijuana lawfully under State law, are directly breaking 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 usage laws, the Federal Government would disregard, except if they uncovered marijuana being sold on school properties or in violation of other public law ordinances. The policy permitted the development of permitted use cannabis, both medical marijuana and recreational use of marijuana, including here in Michigan. Now, there are major fears that the development movement in other States will quit because of a worry 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 authorized 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 effect to Michigan, like other States, is not fully ascertainable at this moment. The concern circles around the problem of whether the US Attorneys for the Eastern and Western District are interested in reallocating constrained resources to try medical marijuana establishments. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to invest those resources. Recently, there has been a strong push to target heroin, fentanyl, and human trafficking, all of which are major issues, particularly in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.
Those facts suggest that it is unlikely that the US Attorney will redirect 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, suggesting that the candidate comprehends that the operation of their facility or use of their license to participate in any way in the marijuana industry, is not allowed by Federal Law and that the United States Government could prosecute such an entity for criminal violations. Prior to the policy position change provided by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, however, Michigan Medical Marijuana Facilities Licensing Act applicants need to be familiar with the policy change, as they have a substantial amount of resources in jeopardy in not only acquiring the license, but in running their business. Even if Medical Cannabis Facilities are functioning in total compliance with Michigan Law, the owners, employees and investors could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Many individuals might rightfully shake their head in confusion at these issues. One view is that, Michigan voters have passed a law okaying the usage of cannabis under specific highly controlled conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can't allow the use of Medical Marijuana. The other view is that the Federal Government has said the use of marijuana is unlawful and so, the States shouldn't have the ability to undermine those regulations. Such is the age-old dispute over Federalism and States' Rights. The solution is, the States have their own system of laws that they are authorized to implement, separate 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, enabling 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 conflict, Federal Law may be executed, 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 contact a lawyer who can discuss with you the possible criminal liability you may undergo in Federal Court should you open and run any of the facilities permitted under the MMFLA.
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