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Cannabis Prosecution Policy Change

AG Sessions Gets Rid Of Obama Administration Regulation Relating To Prosecution of Federal Cannabis Regulations. On Tuesday, Attorney General Jeff Sessions released a policy that guides 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 problematic for a number of reasons, and should create concern for people that use medical marijuana in Michigan, or to those who dispense it.

Criminal Law Consequences. The policy modification could lead to serious obstacles to the Marijuana industry, which has been gradually expanding within the past decade. Until the policy change on Tuesday, a growing amount of States opposed Federal regulations and prohibitions on marijuana usage for any reason, and have passed medical marijuana statutes, as we have here in Michigan, or they have permitted recreational usage of cannabis, as Colorado and California have accomplished, as examples. However, despite the fact that the legislation in Michigan enables the use of Medical Cannabis, those persons who are currently allowed to possess, transport and use cannabis legally under State law, are specifically disobeying federal law, and those persons could be prosecuted in Federal Court for their narcotics offenses.

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, except if they uncovered marijuana being sold on school properties or in violation of other public policy regulations. The protocol permitted the growth of permitted use marijuana, both medical cannabis and recreational use of marijuana, including here in Michigan. Now, there are serious worries that the expansion movement in other States will stop 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 marijuana, and that in States that have authorized recreational use, corporate documents denoting businesses that are engaged in the marijuana 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 question circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reallocating limited resources to try medical cannabis establishments. The U.S. Attorney’s Office has a limited budget and has to prioritize when and where to invest those resources. Lately, there has been a strong drive to target heroin, fentanyl, and human trafficking, all of which are primary issues, specifically 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 redirect those resources to begin strongly prosecuting cannabis related companies.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, implying that the applicant understands that the operation of their facility or use of their license to participate in any way in the marijuana industry, is not authorized by Federal Law and that the United States Government could prosecute such a company for illegal offenses. Before the policy position revision provided by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Marijuana Facilities Licensing Act applicants 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 handling their business. Even if Medical Marijuana Facilities are operating in total compliance with Michigan Law, the owners, employees and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Many individuals may rightfully shake their head in confusion at these problems. One view is that, Michigan voters have passed a law okaying 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 authorize the use of Medical Marijuana. The other perspective is that the Federal Government has said the use of cannabis is illegal 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 laws 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, an outcome of what is generally called the “States’ Rights” movement. However, where Federal Law and State Law are in explicit conflict, Federal Law may be executed, 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 get in touch with a lawyer who can go over with you the potential criminal liability you may undergo in Federal Court should you establish and run any of the facilities permitted under the MMFLA.

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