AG Sessions Removes Obama Administration Policy Regarding Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions released a policy that directs 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 problematic for a number of factors, and should create concern for individuals who utilize medical marijuana in Michigan, or to individuals who dispense it.
Criminal Law Consequences. The policy revision might lead to serious difficulties to the Cannabis industry, that has been steadily growing over the past 10 years. Until the policy revision on Tuesday, a growing number of States resisted Federal guidelines and prohibitions on cannabis usage for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have granted recreational use of cannabis, as Colorado and California have accomplished, as examples. Nevertheless, despite the fact that the law in Michigan enables the use of Medical Marijuana, those persons who are presently allowed to have, move and usage marijuana lawfully under State law, are specifically disobeying federal law, and those individuals 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 disregard, except if they found cannabis being sold on school grounds or in violation of other public policy ordinances. The policy allowed for the growth of legalized use cannabis, both medical marijuana and recreational usage of marijuana, including here in Michigan. Now, there are serious concerns that the development movement in other States will stop as a result of a worry that there may be a Federal crackdown on the marijuana industry. Given that there are central registries in States that have medical cannabis, and that in States that have permitted recreational use, corporate documents denoting businesses that are participated in the marijuana industry, there are, rightfully many people who are afraid 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 entirely ascertainable at this moment. The question circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reallocating limited resources to try medical cannabis establishments. 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 push to target heroin, fentanyl, and human trafficking, all of which are primary concerns, especially 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 begin aggressively prosecuting cannabis associated companies.
However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page waiver, suggesting that the candidate recognizes that the operation of their facility or usage of their license to take part in any way in the marijuana industry, is not authorized by Federal Law and that the United States Government could prosecute such an organization for illegal violations. Before the policy position change released by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, nevertheless, Michigan Medical Cannabis Facilities Licensing Act candidates need to be aware of the policy change, as they have a substantial quantity of resources in jeopardy in not only obtaining the license, but in operating their establishment. Even if Medical Cannabis Facilities are running in complete compliance with Michigan Law, the operators, workers and financiers could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment. Several people might rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law permitting the usage of marijuana under certain strongly 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 perspective is that the Federal Government has said the usage of cannabis is unlawful and so, the States shouldn't be able to undermine those regulations. Such is the age-old argument over Federalism and States' Rights. The answer is, the States have their own system of regulations that they are permitted to execute, independent 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, enabling 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 explicit dispute, Federal Law may be implemented, even if some States have contrasting 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 speak to a lawyer 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 authorized under the MMFLA.
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