Marijuana Prosecution Regulation Shift

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AG Sessions Eliminates Obama Administration Regulation Relating To Prosecution of Federal Cannabis Laws. 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 cannabis usage has been approved by the voters. The new policy directive is troublesome for a variety of factors, and ought to cause worry for people who utilize medical marijuana in Michigan, or to those who dispense it.

Criminal Law Consequences. The policy modification could present major challenges to the Cannabis industry, which has been progressively expanding over the past decade. Until the policy revision on Tuesday, a growing amount of States defied Federal guidelines and prohibitions on cannabis use for any reason, and have passed medical cannabis ordinances, as we have here in Michigan, or they have granted recreational usage of marijuana, as Colorado and California have done, as examples. However, despite the fact that the law in Michigan allows the usage of Medical Marijuana, those persons who are currently permitted to have, move and usage marijuana legally under State law, are directly disobeying federal law, and those persons could be prosecuted in Federal Court for their narcotics offenses.

Previously, the Obama Administration had presented a policy statement that, in States that had passed marijuana usage laws, the Federal Government would disregard, except if they found marijuana being sold on school grounds or in violation of other public policy ordinances. The protocol enabled the growth of legalized use marijuana, both medical cannabis and recreational usage of cannabis, including here in Michigan. Now, there are major worries that the development movement in other States will stop because of a worry that there may be a Federal crackdown on the cannabis industry. Given that there are central registries in States that have medical cannabis, 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 yields.

Impact on Michigan. The impact to Michigan, like other States, is not fully ascertainable at this moment. The concern 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 marijuana 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 powerful push to focus on heroin, fentanyl, and human trafficking, all of which are significant problems, particularly 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 companies.

However, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, indicating 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 allowed by Federal Law and that the United States Government could prosecute such an entity for criminal violations. Before the policy position change provided by AG Sessions last Tuesday, the chances of such prosecutions were limited. Now, however, Michigan Medical Marijuana Facilities Licensing Act applicants need to be familiar with the policy change, as they have a considerable quantity of resources at risk in not only acquiring the license, but in handling their business. Despite The Fact That Medical Cannabis Facilities are operating in complete compliance with Michigan Law, the operators, workers and investors could all be subject to Federal prosecution.

Conflict of Laws and the 10th Amendment. Several individuals might rightfully shake their head in confusion at these concerns. One view is that, Michigan voters have passed a law allowing the use of cannabis under certain strongly controlled circumstances. Why should the Federal Government be able to come in and tell the State of Michigan they can’t allow the usage of Medical Marijuana. The other view is that the Federal Government has said the usage of cannabis is illegal and so, the States should not be able to undermine those laws. Such is the age-old debate over Federalism and States’ Rights. The answer is, the States have their own system of laws that they are permitted to implement, separate and apart from those passed and implemented 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 commonly called the “States’ Rights” movement. Nevertheless, where Federal Law and State Law are in explicit 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 get in touch with a lawyer who can go over with you the possible criminal liability you may undergo in Federal Court should you establish and run any of the facilities allowed under the MMFLA.

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