Cannabis Prosecution Regulation Shift

AG Sessions Removes Obama Administration Policy Regarding Prosecution of Federal Cannabis Laws. On Tuesday, Attorney General Jeff Sessions issued a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, even in States where recreational and medicinal cannabis usage has been permitted by the voters. The new policy directive is troublesome for a number of factors, and ought to create worry for individuals who utilize medical cannabis in Michigan, or to those who dispense it.

Criminal Law Consequences. The policy modification could lead to major difficulties to the Cannabis industry, that has been steadily growing within the past decade. Until the policy modification on Tuesday, a growing amount of States opposed Federal policies and prohibitions on cannabis use for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have granted recreational usage of cannabis, as Colorado and California have done, as examples. However, despite the fact that the law in Michigan permits the use of Medical Cannabis, those individuals who are currently allowed to possess, transport and usage cannabis legally under State law, are directly breaking federal law, and those persons 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 marijuana use laws, the Federal Government would disregard, except if they discovered marijuana being sold on school properties or in violation of other public policy ordinances. The policy permitted the expansion of permitted use marijuana, both medical cannabis and recreational use of cannabis, including here in Michigan. Now, there are severe worries that the development movement in other States will cease 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 marijuana, and that in States that have authorized recreational usage, corporate documents denoting businesses that are participated in the marijuana industry, there are, rightfully many individuals who are scared of arrest and, worst of all, Federal forfeiture of money and their yields.

Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this moment. The concern circles around the issue of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning limited resources to prosecute medical cannabis establishments. The U.S. Attorney's Office has a limited budget and has to prioritize when and where to spend those resources. Recently, there has been a strong push to focus on heroin, fentanyl, and human trafficking, all of which are primary issues, specifically in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.

Those facts suggest that it is not likely that the US Attorney will refocus those resources to start strongly prosecuting cannabis associated facilities.

However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, suggesting that the candidate recognizes that the operation of their facility or usage of their license to take part in any way in the cannabis business, is not allowed by Federal Law and that the United States Government could prosecute such an organization for illegal offenses. Prior to the policy position revision provided by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, nevertheless, Michigan Medical Cannabis Facilities Licensing Act candidates need to be aware of the policy change, as they have a considerable amount of capital at risk in not only acquiring the license, but in operating their business. Even if Medical Cannabis Facilities are running in total compliance with Michigan Law, the operators, workers and investors could all be subject to Federal prosecution.

Dispute of Laws and the 10th Amendment. Many individuals might rightfully shake their head in confusion at these concerns. One view is that, Michigan voters have passed a law permitting the use of cannabis under specific highly controlled circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not authorize the usage of Medical Cannabis. The other perspective is that the Federal Government has said the usage of cannabis is illegal 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 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. However, where Federal Law and State Law are in explicit disagreement, 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 Marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact an attorney who can go over with you the potential criminal liability you may be subject to in Federal Court should you open and operate any of the facilities permitted under the mmfla.