AG Sessions Removes Obama Administration Policy Regarding Prosecution of Federal Marijuana Laws. On Tuesday, Attorney General Jeff Sessions issued a policy which directs local U.S. Attorneys to prosecute federal criminal offenses for marijuana law violations, even in States where recreational and medicinal marijuana use has been approved by the voters. The new policy directive is problematic for a number of reasons, and should cause concern for people who use medical marijuana in Michigan, or to those who dispense it.
Criminal Law Consequences.
The policy change could pose serious challenges to the Marijuana industry, which has been steadily growing over the past decade. Until the policy change on Tuesday, an increasing number of States defied Federal regulations and prohibitions on marijuana use for any reason, and have passed medical marijuana statutes, as we have here in Michigan, or they have permitted recreational use of marijuana, as Colorado and California have done, as examples. However, even though the law in Michigan permits the use of Medical Marijuana, those persons who are currently permitted to possess, transport and use marijuana legally 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 marijuana usage laws, the Federal Government would look the other way, unless they discovered marijuana being sold on school grounds or in violation of other public policy directives. The policy allowed for the expansion of legalized use of marijuana, both medical marijuana and recreational use of marijuana, including here in Michigan. Now, there are serious fears that the expansion movement in other States will stop because of a fear that there may be a Federal crackdown on the marijuana industry. Given that there are central registries in States that have medical marijuana, and that in States that have approved recreational use, 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 crops.
Impact on Michigan.
The impact to Michigan, like other States, is not fully ascertainable at this point. The question circles around the issue of whether the US Attorneys for the Eastern and Western District are interested in reallocating limited resources to prosecute medical marijuana facilities. The U.S. Attorney’s Office has a finite budget and has to prioritize when and where to spend those resources. Recently, there has been a strong push to target heroin, fentanyl, and human trafficking, all of which are major issues, particularly in the Eastern District which covers Wayne, Oakland and Macomb counties, as well as others.
Those facts suggest that it is unlikely that the US Attorney will redirect those resources to begin aggressively prosecuting marijuana related facilities.
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 permitted by Federal Law and that the United States Government could prosecute such an entity for criminal violations. Prior to the policy position change issued by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, however, Michigan Medical Marijuana Facilities Licensing Act applicants need to be aware of the policy change, as they have a significant amount of capital at risk in not only obtaining the license, but in operating their business. Even if Medical Marijuana Facilities are operating in complete compliance with Michigan Law, the owners, workers and investors could all be subject to Federal prosecution.
Conflict of Laws and the 10th Amendment.
Many people might rightfully shake their head in confusion at these issues. One view is that, Michigan voters have passed a law permitting the use of marijuana under certain highly regulated conditions. Why should the Federal Government be able to come in and tell the State of Michigan they can’t permit the use of Medical Marijuana. The other view is that the Federal Government has said the use of marijuana is illegal and so, the States shouldn’t 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 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, a result of what is commonly called the “States’ Rights” movement. However, where Federal Law and State Law are in direct conflict, Federal Law may be enforced, 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 an attorney who can discuss with you the potential criminal liability you may be subject to in Federal Court should you open and operate any of the facilities permitted under the MMFLA.