Cannabis Prosecution Regulation Shift

AG Sessions Eliminates Obama Administration Regulation Regarding Prosecution of Federal Cannabis Laws. On Tuesday, Attorney General Jeff Sessions released a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for cannabis 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 variety of factors, and ought to cause concern for people that use medical marijuana in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy revision could pose serious difficulties to the Cannabis industry, which has been progressively expanding within the past 10 years. Up until the policy revision on Tuesday, a growing number of States resisted Federal guidelines and prohibitions on marijuana usage for any reason, and have passed medical marijuana ordinances, as we have here in Michigan, or they have permitted recreational usage of marijuana, as Colorado and California have accomplished, as examples. However, even though the law in Michigan allows the usage of Medical Cannabis, those individuals who are presently allowed to possess, transport and usage cannabis lawfully 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 usage laws, the Federal Government would look the other way, unless they uncovered marijuana being sold on school properties or in violation of other public policy regulations. The regulation allowed for the development of legalized use of cannabis, both medical marijuana and recreational use cannabis, including here in Michigan. Now, there are serious worries that the development movement in other States will quit because of a fear 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 authorized recreational use, 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 question circles around the concern of whether the US Attorneys for the Eastern and Western District are interested in reapportioning limited resources to prosecute medical marijuana establishments. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to spend those resources. Lately, there has been a powerful push to focus on heroin, fentanyl, and human trafficking, all of which are primary problems, specifically 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 refocus those resources to begin aggressively prosecuting marijuana associated facilities.

However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, suggesting that the candidate understands 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 entity for illegal violations. Prior to the policy position revision provided by AG Sessions last Tuesday, the odds of such prosecutions were minimized. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act applicants need to be aware of the policy change, as they have a considerable amount of resources in jeopardy in not only acquiring the license, but in running their establishment. Despite The Fact That Medical Cannabis Facilities are functioning in complete compliance with Michigan Law, the owners, workers 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 allowing the usage of cannabis under certain strongly regulated circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not authorize the use of Medical Cannabis. The other perspective is that the Federal Government has said the use of cannabis is unlawful and so, the States should not be able to undermine those regulations. Such is the age-old argument over Federalism and States' Rights. The solution is, the States have their own system of laws that they are permitted to implement, separate 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, permitting the States to have their own set of laws, an outcome of what is typically called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in absolute dispute, Federal Law may be enforced, even if some States have conflicting 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 potential criminal liability you may be subject to in Federal Court should you establish and run any of the facilities allowed under the MMFLA.

medical marijuana