Cannabis Prosecution Policy Change
AG Sessions Gets Rid Of Obama Administration Regulation Regarding 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 cannabis law offenses, even in States where recreational and medicinal marijuana use has been approved by the voters. The new policy directive is troublesome for a variety of factors, and ought to cause worry for people that use medical cannabis in Michigan, or to individuals who dispense it.
Criminal Law Consequences. The policy change could lead to severe obstacles to the Cannabis industry, that has been gradually growing within the past 10 years. Until the policy modification on Tuesday, an increasing number of States resisted Federal regulations and prohibitions on marijuana use for any reason, and have passed medical cannabis regulations, as we have here in Michigan, or they have permitted recreational use of cannabis, as Colorado and California have accomplished, as examples. Nevertheless, despite the fact that the legislation in Michigan permits the use of Medical Marijuana, those persons who are presently permitted to possess, move and use marijuana lawfully under State law, are specifically disobeying federal law, and those individuals could be prosecuted in Federal Court for their narcotics violations.
Previously, the Obama Administration had produced a policy statement that, in States that had passed marijuana usage laws, the Federal Government would disregard, except if they uncovered marijuana being sold on school grounds or in violation of other public law directives. The policy enabled the development of permitted use marijuana, both medical marijuana and recreational use cannabis, including here in Michigan. Now, there are major fears that the development movement in other States will stop as a result 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 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 individuals who are afraid 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 completely ascertainable at this point. The question circles around the concern of whether the US Attorneys for the Eastern and Western District have an interest in reallocating constrained resources to try medical cannabis facilities. 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 powerful drive 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 propose that it is unlikely that the US Attorney will redirect those resources to begin strongly prosecuting marijuana associated facilities.
However, there is a reason that the Medical Cannabis Facilities Licensing Application has a full-page disclaimer, implying that the candidate recognizes that the operation of their facility or use of their license to take part in any way in the cannabis 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 provided by AG Sessions last Tuesday, the odds of such prosecutions were limited. Now, nevertheless, Michigan Medical Marijuana Facilities Licensing Act candidates need to be aware of the policy change, as they have a considerable quantity of capital in jeopardy in not only acquiring the license, but in running their business. Even if Medical Cannabis Facilities are operating in total compliance with Michigan Law, the operators, workers and investors 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 view is that, Michigan voters have passed a law permitting the use of marijuana under specific strongly regulated circumstances. Why should the Federal Government be able to come in and tell the State of Michigan they can not allow the usage of Medical Cannabis. The other perspective is that the Federal Government has said the use of marijuana is unlawful and so, the States should not be able to undermine those regulations. Such is the age-old debate over Federalism and States' Rights. The answer is, the States have their own system of regulations that they are authorized to execute, separate 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, allowing the States to have their own set of laws, an outcome of what is generally called the "States' Rights" movement. Nevertheless, where Federal Law and State Law are in absolute dispute, Federal Law may be enforced, even if some States have contrasting laws, because of this dual system. Therefore, 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 an attorney who can discuss with you the potential criminal liability you may be subject to in Federal Court should you open and run any of the facilities authorized under the MMFLA.
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