AG Sessions Eliminates Obama Administration Policy Regarding Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions issued a policy which guides local U.S. Attorneys to prosecute federal criminal offenses for cannabis 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 variety of factors, and ought to create worry for people who use medical marijuana in Michigan, or to those who dispense it.
Criminal Law Consequences. The policy modification could present major challenges to the Cannabis industry, that has been progressively expanding over the past decade. Until the policy change on Tuesday, a growing amount of States defied Federal regulations and prohibitions on cannabis use for any reason, and have passed medical marijuana statutes, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have done, as examples. However, despite the fact that the legislation in Michigan permits the use of Medical Marijuana, those individuals who are presently permitted to possess, transport and use cannabis lawfully under State law, are directly breaking federal law, and those persons 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 disregard, unless they discovered cannabis being sold on school grounds or in violation of other public law regulations. The protocol allowed for the development of legalized use of marijuana, both medical cannabis and recreational use of marijuana, including here in Michigan. Now, there are serious concerns 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 approved recreational use, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many individuals who are scared of arrest and, worst of all, Federal forfeiture of money and their products.
Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this point. The concern circles around the problem of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning constrained resources to prosecute medical cannabis facilities. 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 drive to target heroin, fentanyl, and human trafficking, all of which are primary issues, particularly 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 refocus those resources to start aggressively prosecuting marijuana associated facilities.
Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, indicating that the candidate understands that the operation of their facility or usage of their license to participate in any way in the marijuana business, is not authorized by Federal Law and that the United States Government could prosecute such a company for criminal violations. Prior to the policy position change provided by AG Sessions last Tuesday, the chances of such prosecutions were limited. Now, nevertheless, 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 obtaining the license, but in operating their establishment. Despite The Fact That Medical Marijuana Facilities are operating in complete compliance with Michigan Law, the owners, employees and financiers could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Many people 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 be able to come in and tell the State of Michigan they can't permit the usage of Medical Marijuana. The other perspective is that the Federal Government has said the use of marijuana is prohibited and so, the States shouldn't have the ability to undermine those laws. Such is the age-old argument over Federalism and States' Rights. The solution is, the States have their own system of regulations that they are allowed 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, enabling 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 absolute disagreement, 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 go over with you the possible criminal liability you may be subject to in Federal Court should you establish and run any of the facilities allowed under the MMFLA.
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