Marijuana Prosecution Regulation Shift

AG Sessions Gets Rid Of Obama Administration Regulation Regarding Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions issued a policy that directs local U.S. Attorneys to prosecute federal criminal offenses for cannabis law offenses, even in States where recreational and medicinal cannabis usage has been authorized by the voters. The new policy directive is problematic for a variety of factors, and ought to create worry for individuals who utilize medical cannabis in Michigan, or to individuals who dispense it.

Criminal Law Consequences. The policy revision might pose severe obstacles to the Cannabis industry, which has been gradually progressing over the past 10 years. Until the policy revision on Tuesday, an increasing number of States defied Federal regulations and prohibitions on cannabis usage for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have granted recreational use of marijuana, as Colorado and California have done, as examples. Nevertheless, even though the law in Michigan permits the usage of Medical Cannabis, those persons who are presently allowed to possess, transport and usage cannabis lawfully under State law, are specifically breaking federal law, and those individuals 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 cannabis use laws, the Federal Government would look the other way, except if they found marijuana being sold on school grounds or in violation of other public policy regulations. The policy enabled the development of legalized usage of marijuana, both medical cannabis and recreational usage of marijuana, including here in Michigan. Now, there are major fears that the development movement in other States will stop 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 marijuana, and that in States that have permitted 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 crops.

Impact on Michigan. The impact to Michigan, like other States, is not completely ascertainable at this point. The concern circles around the problem of whether the US Attorneys for the Eastern and Western District are interested in reallocating constrained resources to try 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 push to focus on heroin, fentanyl, and human trafficking, all of which are significant 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 redirect those resources to begin aggressively prosecuting marijuana related facilities.

Nevertheless, there is a reason that the Medical Marijuana Facilities Licensing Application has a full-page waiver, indicating that the applicant comprehends that the operation of their facility or use of their license to participate in any way in the marijuana business, is not permitted by Federal Law and that the United States Government could prosecute such an entity for criminal violations. Prior to the policy position revision released by AG Sessions last Tuesday, the chances of such prosecutions were minimized. Now, however, Michigan Medical Cannabis Facilities Licensing Act candidates need to be familiar with the policy change, as they have a substantial quantity of funding in jeopardy in not only getting the license, but in handling their business. Despite The Fact That Medical Cannabis 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 people might rightfully shake their head in confusion at these problems. One perspective is that, Michigan voters have passed a law permitting the use of cannabis under certain highly controlled circumstances. Why should the Federal Government have the ability to come in and tell the State of Michigan they can’t authorize the usage of Medical Cannabis. The other view is that the Federal Government has said the usage of marijuana is illegal and so, the States should not be able to undermine those regulations. Such is the age-old dispute over Federalism and States’ Rights. The solution is, the States have their own system of regulations that they are allowed 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, enabling the States to have their own set of laws, an outcome of what is commonly called the “States’ Rights” movement. However, where Federal Law and State Law are in absolute dispute, Federal Law may be executed, even if some States have conflicting laws, because of this dual system. Therefore, anyone applying for a facilities license under the Medical marijuana Facilities Licensing Act, needs to not only take the waiver seriously, but needs to contact 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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