Cannabis Prosecution Policy Shift

AG Sessions Eliminates Obama Administration Policy Relating To 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 marijuana law offenses, even in States where recreational and medicinal marijuana use has been authorized by the voters. The new policy directive is troublesome for a number of reasons, and ought to cause concern for people who use medical cannabis in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy revision might pose severe obstacles to the Marijuana industry, which has been steadily growing within the past 10 years. Until the policy modification on Tuesday, a growing number of States resisted Federal guidelines and prohibitions on cannabis usage for any reason, and have passed medical marijuana regulations, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have accomplished, as examples. However, even though the legislation in Michigan enables the usage of Medical Cannabis, those individuals who are presently allowed to have, transport and usage cannabis legally under State law, are directly disobeying federal law, and those individuals could be prosecuted in Federal Court for their narcotics infractions.

Previously, the Obama Administration had put out a policy statement that, in States that had passed marijuana usage laws, the Federal Government would look the other way, unless they discovered cannabis being sold on school grounds or in violation of other public law regulations. The policy enabled the expansion of legalized use marijuana, both medical marijuana and recreational use marijuana, including here in Michigan. Now, there are severe concerns that the development movement in other States will quit as a result of a worry 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 permitted recreational use, corporate documents denoting businesses that are engaged in the cannabis industry, there are, rightfully many people who are scared of arrest and, worst of all, Federal forfeiture of money and their plants.

Impact on Michigan. The impact to Michigan, like other States, is not entirely ascertainable at this moment. The concern circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reapportioning constrained resources to try medical marijuana establishments. The U.S. Attorney's Office has a finite budget and has to prioritize when and where to spend those resources. Lately, there has been a strong push 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 indicate that it is not likely that the US Attorney will refocus those resources to start strongly prosecuting cannabis related companies.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page disclaimer, indicating that the candidate understands that the operation of their facility or use of their license to take part in any way in the cannabis industry, is not authorized by Federal Law and that the United States Government could prosecute such an organization for illegal violations. Prior to the policy position change issued by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, however, Michigan Medical Cannabis Facilities Licensing Act applicants need to be familiar with the policy change, as they have a significant quantity of capital at risk in not only acquiring the license, but in running their establishment. Even if Medical Cannabis Facilities are operating in complete compliance with Michigan Law, the owners, workers and investors 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 concerns. One view is that, Michigan voters have passed a law permitting the use of cannabis under specific strongly regulated conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can not allow the use 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 be able to undermine those laws. Such is the age-old dispute over Federalism and States' Rights. The solution is, the States have their own system of laws that they are allowed to implement, 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, authorizing the States to have their own set of laws, a result of what is typically called the "States' Rights" movement. However, where Federal Law and State Law are in absolute conflict, Federal Law may be implemented, even if some States have contrasting 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 speak to an attorney who can go over with you the potential criminal liability you may be subject to in Federal Court should you establish and run any of the facilities permitted under the MMFLA.