AG Sessions Gets Rid Of Obama Administration Regulation Relating To Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions issued a policy which guides local U.S. Attorneys to prosecute federal criminal offenses for cannabis law offenses, even in States where recreational and medicinal marijuana usage has been permitted by the voters. The new policy directive is problematic for a variety of reasons, and should cause worry for people who use medical marijuana in Michigan, or to those who dispense it.
Criminal Law Consequences. The policy revision might present serious challenges to the Marijuana industry, that has been progressively growing within the past decade. Up until the policy modification on Tuesday, an increasing amount of States defied Federal regulations and prohibitions on marijuana usage for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have granted recreational usage of cannabis, as Colorado and California have done, as examples. However, even though the law in Michigan allows the usage of Medical Marijuana, those individuals who are currently permitted to possess, transport and use cannabis legally under State law, are directly disobeying federal law, and those individuals could be prosecuted in Federal Court for their narcotics offenses.
Previously, the Obama Administration had produced a policy statement that, in States that had passed marijuana use 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 ordinances. The protocol allowed for the development of legalized use of marijuana, both medical cannabis and recreational use cannabis, including here in Michigan. Now, there are major worries that the development movement in other States will stop as a result 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 approved recreational use, corporate documents denoting businesses that are participated in the cannabis industry, there are, rightfully many people 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 concern of whether the US Attorneys for the Eastern and Western District have an interest in reapportioning constrained resources to prosecute medical marijuana facilities. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to spend those resources. Recently, there has been a strong push to target heroin, fentanyl, and human trafficking, all of which are primary issues, especially 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 redirect those resources to start strongly prosecuting cannabis related facilities.
However, there is a reason that the Medical Marijuana 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 organization for illegal offenses. Prior to the policy position revision issued by AG Sessions last Tuesday, the chances of such prosecutions were limited. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act candidates need to be aware of the policy change, as they have a substantial amount of funding at risk in not only acquiring the license, but in running their establishment. Even if Medical Cannabis Facilities are operating in total compliance with Michigan Law, the owners, workers and financiers could all be subject to Federal prosecution.
Dispute of Laws and the 10th Amendment. Several individuals may rightfully shake their head in confusion at these issues. One perspective is that, Michigan voters have passed a law okaying the usage of cannabis under certain highly controlled conditions. Why should the Federal Government have the ability to come in and tell the State of Michigan they can not permit the usage of Medical Marijuana. The other view is that the Federal Government has said the use of cannabis is prohibited and so, the States should not have the ability 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 regulations that they are allowed 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, allowing the States to have their own set of laws, a result of what is commonly called the "States' Rights" movement. However, where Federal Law and State Law are in absolute dispute, 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 contact an attorney who can discuss 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.
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