AG Sessions Removes Obama Administration Policy Relating To Prosecution of Federal Marijuana Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy that directs 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 should cause worry for people who use medical cannabis in Michigan, or to individuals who dispense it.
Criminal Law Consequences. The policy change could present major challenges to the Cannabis industry, which has been steadily expanding within the past 10 years. Until the policy change on Tuesday, an increasing number of States defied Federal regulations and prohibitions on cannabis use for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have granted recreational usage of cannabis, as Colorado and California have done, as examples. However, even though the law in Michigan allows the usage of Medical Marijuana, those persons who are currently allowed to possess, transport and usage cannabis legally under State law, are specifically breaking federal law, and those individuals could be prosecuted in Federal Court for their narcotics infractions.
Previously, the Obama Administration had presented a policy statement that, in States that had passed marijuana use laws, the Federal Government would look the other way, unless they uncovered cannabis being sold on school grounds or in violation of other public law ordinances. The regulation allowed for the growth of legalized use of cannabis, both medical marijuana and recreational usage of marijuana, including here in Michigan. Now, there are severe worries that the expansion movement in other States will cease because of a fear that there may be a Federal crackdown on the cannabis industry. Given that there are central registries in States that have medical cannabis, and that in States that have authorized recreational use, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many individuals who are afraid of arrest and, worst of all, Federal forfeiture of money and their yields.
Impact on Michigan. The effect 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 are interested in reallocating limited resources to prosecute medical cannabis establishments. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to spend those resources. Recently, there has been a strong drive to target heroin, fentanyl, and human trafficking, all of which are major concerns, specifically in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.
Those facts indicate that it is unlikely that the US Attorney will redirect those resources to start aggressively prosecuting cannabis associated companies.
Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, implying that the applicant comprehends that the operation of their facility or use of their license to participate in any way in the cannabis 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 issued by AG Sessions last Tuesday, the chances of such prosecutions were limited. Now, nevertheless, Michigan Medical Cannabis Facilities Licensing Act candidates need to be familiar with the policy change, as they have a significant amount of resources in jeopardy in not only acquiring the license, but in operating their business. Even if Medical Cannabis Facilities are functioning in complete compliance with Michigan Law, the owners, employees and investors could all be subject to Federal prosecution.
Dispute of Laws and the 10th Amendment. Numerous individuals may rightfully shake their head in confusion at these issues. One perspective is that, Michigan voters have passed a law permitting the usage of cannabis under specific strongly regulated conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can't permit the usage of Medical Marijuana. The other view is that the Federal Government has said the use of cannabis is prohibited and so, the States should not 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 laws that they are permitted to execute, independent and apart from those passed and executed 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, an outcome of what is typically 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 contrasting 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 go over with you the possible criminal liability you may undergo in Federal Court should you establish and run any of the facilities permitted under the MMFLA.
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