In 2018, the state of Michigan legalized adult-use marijuana, which was supposed to significantly reduce the black market. When every adult who chooses to grow their own plants and licensed commercial marijuana retail stores are readily available, the demand for unlicensed and unregulated marijuana is supposed to be eliminated. This has not proven to be true. 

Marijuana crime, marijuana black market

As some predicted, black market marijuana has increased and now, marijuana related criminal prosecutions are too. 

Michigan’s Caregiving Program Has Matured

Caregiver cultivation of marijuana in Michigan has become an industry that is hard to compete with. Caregiver production significantly increased while it was permitted that their product could be introduced into the commercial market and sold at dispensaries. 

Now, they are more sophisticated and well-funded. Plus, they can operate without the significant expenses of a licensed commercial grow. There are no high state filing and licensing fees, and you do not need a municipal license. The product does not have to be tested, and the Marijuana Regulatory Agency (MRA) is not tracking it. The bottom line is that caregivers have a financial and regulatory advantage over state-regulated and licensed marijuana industries. This is especially true if there is no criminal prosecutions or law enforcement oversight.

When it came to legalization and regulation, we tried to treat marijuana like alcohol. However, marijuana is not like alcohol due to the ease of growing the plants as opposed to distilling alcohol. Since liquor stores carry such a wide variety, with national brands and little regulation, there is not a black market anymore. Conversely, since almost anyone can grow their own marijuana (and many have become quite good at it), the black market has then significantly flourished. Then, the product is produced and sold at much lower prices. 

Recent Increase of Marijuana Criminal Investigations in Michigan

Since the legalization of adult-use marijuana, there has not been any significant amount of law enforcement investigations or criminal prosecutions. Currently, there are hundreds of unlicensed dispensaries in operation. Additionally, unlicensed delivery services are now growing more widespread. They do not have to pay taxes or follow any rules. They even advertise themselves on Weedmaps. These unlicensed operations are competing with licensed and regulated retail and cultivation centers, who have paid hundreds of thousands of dollars to operate legally; if not more. 

However, it seems that this is changing as of recently: 

Drug enforcement at Michigan’s five ports of entry — the Ambassador Bridge and Detroit Windsor Tunnel, the Blue Water Bridge in Port Huron, the International Bridge in Sault Ste. Marie and Detroit Metro Airport — netted 9,059 pounds of pot, a 1,726% increase from the year before. (source: The Detroit Free Press)

Additionally, the Michigan State Police has a marijuana and tobacco investigative section, which has been increasing its investigations and arrests. The head of the Marijuana Enforcement Division of the Michigan State Police recently stated that they spend most of their marijuana investigations closing down black market brick and mortar operations. He reported that in most cases after being shut down, they open back up a short time later. One problem is that local county prosecutors do not know how to charge these cases, because of the recreational marijuana law. 

Michigan’s New Criminal Penalties under MRTMA

Section 15 of the Michigan Regulation and Taxation of Marijuana Act (MRTMA) contains Michigan’s criminal penalties for marijuana cases. The only criminal offense listed in MRTMA is growing or possessing more than two times the legal limit, which is 2.5 ounces (10 ounces at home) or 12 plants. If the offense does not have any evidence of commercial distribution, the penalty is a misdemeanor with no jail time. Not even a fine is imposed. 

So what happens if a person is caught growing 100 marijuana plants or possessing 10 pounds? Some county prosecutors are still charging people with felonies, while others are simply charging the MRMTA penalties. 

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We Need Uniformity in Prosecutions To Eliminate Mass Incarceration

Recently, we have seen multiple marijuana related prosecutions all over the state. A majority of the cases involve massive marijuana cultivation operations, unlicensed dispensaries, and cases with large numbers of extracted products, like gummies and cartridges. They have been prosecuted as traditional intent to deliver felonies, or with the new MRTMA charges coupled with maintaining a drug house (even if it was found in a vehicle). 

As you can see, these are major disparities on how similar cases are being handled, which is not fair. Further, with the more felonies convictions, the more people are likely to be incarcerated, particularly those who have a prior felony conviction history. 

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The bottom line is that when the state of Michigan legalized marijuana in 2018, one of the reasons was to ensure no one goes to jail for marijuana-related offenses. Therefore, it is necessary to fight any new marijuana felony matters and win using the MRTMA as a defense. We must also get these prosecutors to understand that we will not tolerate the return of mass incarceration for marijuana offenses. The marijuana reform movement cannot afford to take any steps backwards. It starts with standing up to and derailing unlawful prosecutions.

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