AG Sessions Eliminates Obama Administration Policy Regarding Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions released a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for marijuana law violations, even in States where recreational and medicinal cannabis usage has been permitted by the voters. The new policy directive is problematic for a number of factors, and ought to create concern for individuals that utilize medical marijuana in Michigan, or to those who dispense it.
Criminal Law Consequences. The policy modification could present major challenges to the Marijuana industry, which has been steadily growing over the past decade. Until the policy revision on Tuesday, an increasing number of States resisted Federal policies 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 done, as examples. However, even though the law in Michigan allows the usage of Medical Marijuana, those persons who are presently allowed to possess, transport and use cannabis lawfully under State law, are directly disobeying federal law, and those persons 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 marijuana usage laws, the Federal Government would look the other way, except if they uncovered cannabis being sold on school properties or in violation of other public law regulations. The regulation enabled the expansion of permitted usage of cannabis, both medical marijuana and recreational use cannabis, including here in Michigan. Now, there are major concerns that the development movement in other States will cease because of a concern 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 approved 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 crops.
Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this point. The question circles around the problem of whether the US Attorneys for the Eastern and Western District are interested in reapportioning constrained resources to try medical marijuana establishments. The U.S. Attorney's Office has a limited budget and has to prioritize when and where to devote those resources. Lately, there has been a powerful drive to focus on heroin, fentanyl, and human trafficking, all of which are significant problems, 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 related facilities.
Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, indicating that the candidate understands that the operation of their facility or usage of their license to participate in any way in the cannabis industry, is not permitted by Federal Law and that the United States Government could prosecute such a company for illegal violations. Before the policy position change provided by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Cannabis Facilities Licensing Act applicants need to be aware of the policy change, as they have a significant quantity of funding in jeopardy in not only acquiring the license, but in handling their establishment. Even if Medical Marijuana Facilities are running in total compliance with Michigan Law, the operators, workers and investors could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Many individuals may rightfully shake their head in confusion at these concerns. One perspective is that, Michigan voters have passed a law okaying the usage of cannabis under specific strongly controlled conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can't authorize the use of Medical Cannabis. 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 regulations. Such is the age-old debate over Federalism and States' Rights. The solution is, the States have their own system of laws that they are allowed to implement, separate 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, permitting the States to have their own set of laws, a result of what is commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in direct conflict, 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 get in touch with an attorney who can go over with you the potential criminal liability you may undergo in Federal Court should you open and run any of the facilities allowed under the MMFLA.
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