Cannabis Prosecution Policy Shift
AG Sessions Removes Obama Administration Regulation Regarding Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy which directs local U.S. Attorneys to prosecute federal criminal offenses for cannabis law offenses, even in States where recreational and medicinal cannabis usage has been authorized by the voters. The new policy directive is problematic for a variety of reasons, and ought to create worry for individuals that utilize medical cannabis in Michigan, or to individuals who distribute it.
Criminal Law Consequences. The policy change might pose severe difficulties to the Marijuana industry, that has been gradually progressing over the past decade. Until the policy change on Tuesday, a growing number of States resisted Federal policies and prohibitions on cannabis usage for any reason, and have passed medical cannabis statutes, as we have here in Michigan, or they have granted recreational use of cannabis, as Colorado and California have done, as examples. Nevertheless, even though the legislation in Michigan permits the usage of Medical Cannabis, those persons who are presently allowed to have, move and use cannabis legally under State law, are specifically breaking federal law, and those persons could be prosecuted in Federal Court for their narcotics violations.
Previously, the Obama Administration had produced a policy statement that, in States that had passed cannabis usage laws, the Federal Government would look the other way, except if they uncovered cannabis being sold on school grounds or in violation of other public policy regulations. The policy enabled the development of permitted usage of marijuana, both medical marijuana and recreational use cannabis, including here in Michigan. Now, there are serious 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 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 afraid of arrest and, worst of all, Federal forfeiture of money and their products.
Impact on Michigan. The effect to Michigan, like other States, is not fully ascertainable at this point. The concern circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reapportioning constrained resources to prosecute medical cannabis facilities. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to devote those resources. Lately, there has been a strong drive to focus on heroin, fentanyl, and human trafficking, all of which are significant issues, especially in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.
Those facts propose that it is not likely that the US Attorney will redirect those resources to start strongly prosecuting marijuana associated companies.
Nevertheless, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, implying that the candidate recognizes that the operation of their facility or usage of their license to take part in any way in the cannabis industry, 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 issued by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Cannabis Facilities Licensing Act applicants need to be familiar with the policy change, as they have a significant amount of capital in jeopardy in not only getting the license, but in handling their establishment. Despite The Fact That Medical Marijuana Facilities are operating in complete compliance with Michigan Law, the operators, employees and financiers could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Several people may rightfully shake their head in confusion at these issues. One view is that, Michigan voters have passed a law allowing the usage of marijuana under specific highly 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 Cannabis. The other view is that the Federal Government has said the usage of marijuana is prohibited and so, the States shouldn't be able to undermine those regulations. Such is the age-old dispute over Federalism and States' Rights. The answer is, the States have their own system of regulations that they are authorized to execute, 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 direct dispute, Federal Law may be implemented, 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 get in touch with a lawyer who can discuss with you the possible criminal liability you may undergo in Federal Court should you establish and operate any of the facilities permitted under the MMFLA.