AG Sessions Eliminates Obama Administration Policy Regarding Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions released a policy which directs local U.S. Attorneys to prosecute federal criminal offenses for cannabis law violations, even in States where recreational and medicinal cannabis use has been authorized by the voters. The new policy directive is problematic for a number of factors, and ought to create worry for individuals that utilize medical cannabis in Michigan, or to those who distribute it.
Criminal Law Consequences. The policy modification could pose major difficulties to the Cannabis industry, which has been progressively progressing over the past 10 years. Up until the policy change on Tuesday, a growing amount of States resisted Federal policies and prohibitions on marijuana usage for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have done, as examples. Nevertheless, even though the legislation in Michigan allows the use of Medical Cannabis, those persons who are currently allowed to have, transport and usage marijuana lawfully under State law, are specifically disobeying federal law, and those individuals could be prosecuted in Federal Court for their narcotics offenses.
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 found marijuana being sold on school grounds or in violation of other public policy directives. The protocol allowed for the growth of permitted use of marijuana, both medical marijuana and recreational usage of cannabis, including here in Michigan. Now, there are severe worries that the development movement in other States will cease 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 usage, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many people who are afraid 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 concern circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning limited resources to prosecute medical marijuana facilities. The U.S. Attorney's Office has a restricted budget and has to prioritize when and where to devote those resources. Recently, there has been a powerful push to focus on 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 propose that it is unlikely 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 applicant comprehends that the operation of their facility or use of their license to participate in any way in the cannabis business, is not allowed by Federal Law and that the United States Government could prosecute such a company for illegal violations. Before the policy position change released by AG Sessions last Tuesday, the odds 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 considerable amount of resources at risk in not only obtaining the license, but in running their establishment. Even if Medical Marijuana Facilities are running in total compliance with Michigan Law, the operators, workers and financiers 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 use of marijuana under specific strongly regulated circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can't allow the usage of Medical Marijuana. The other perspective is that the Federal Government has said the use of cannabis is unlawful and so, the States shouldn't have the ability to undermine those regulations. Such is the age-old debate over Federalism and States' Rights. The answer is, the States have their own system of regulations that they are allowed to implement, 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, authorizing the States to have their own set of laws, a result of what is typically called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in direct disagreement, 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 possible criminal liability you may be subject to in Federal Court should you establish and operate any of the facilities authorized under the MMFLA.
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