Cannabis Prosecution Policy Shift

AG Sessions Eliminates Obama Administration Policy Relating To Prosecution of Federal Cannabis Laws. On Tuesday, Attorney General Jeff Sessions issued a policy that guides local U.S. Attorneys to prosecute federal criminal offenses for marijuana law offenses, even in States where recreational and medicinal cannabis use has been approved by the voters. The new policy directive is troublesome for a variety of factors, and should create concern for individuals who use medical cannabis in Michigan, or to individuals who distribute it.

Criminal Law Consequences. The policy modification could lead to major difficulties to the Marijuana industry, that has been steadily expanding over the past decade. Until the policy revision on Tuesday, an increasing amount of States defied Federal policies and prohibitions on marijuana use for any reason, and have passed medical cannabis statutes, as we have here in Michigan, or they have granted recreational use of cannabis, as Colorado and California have accomplished, as examples. Nevertheless, even though the law in Michigan permits the usage of Medical Marijuana, those persons who are presently allowed to have, move and usage cannabis lawfully under State law, are directly violating federal law, and those persons could be prosecuted in Federal Court for their narcotics violations.

Previously, the Obama Administration had put out a policy statement that, in States that had passed cannabis use laws, the Federal Government would disregard, unless they found marijuana being sold on school grounds or in violation of other public law directives. The protocol enabled the expansion of permitted usage of marijuana, both medical marijuana and recreational usage of marijuana, including here in Michigan. Now, there are severe fears that the development movement in other States will cease because of a fear that there may be a Federal crackdown on the marijuana 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 engaged in the marijuana industry, there are, rightfully many people who are afraid 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 question circles around the issue 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 finite budget and has to prioritize when and where to invest those resources. Recently, there has been a powerful drive to target heroin, fentanyl, and human trafficking, all of which are primary problems, particularly 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 strongly prosecuting cannabis related companies.

However, 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 use of their license to take part in any way in the marijuana business, is not authorized by Federal Law and that the United States Government could prosecute such an entity for illegal offenses. Prior to the policy position change issued by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, nevertheless, Michigan Medical Cannabis Facilities Licensing Act applicants need to be familiar with the policy change, as they have a substantial amount of resources at risk in not only obtaining the license, but in running their business. Even if Medical Marijuana Facilities are operating in complete compliance with Michigan Law, the operators, employees and financiers could all be subject to Federal prosecution.

Conflict 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 usage of cannabis under certain highly regulated conditions. Why should the Federal Government be able 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 marijuana is unlawful 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 laws that they are authorized to implement, independent 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, permitting the States to have their own set of laws, an outcome of what is commonly called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in absolute disagreement, Federal Law may be enforced, even if some States have conflicting laws, because of this dual system. As a result, anyone applying for a facilities license under the Medical Cannabis Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact 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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