Prosecutors reviewing, dismissing marijuana cases in wake of Prop 1

Christine Ferretti
The Detroit News
This is 1/8th of an ounce of "Blue Zkittles" on the scale at Far West Holistic Center in Detroit.

Prosecuting agencies in Michigan are reviewing and — in some cases — already seeking dismissal of lower-level drug cases in light of a voter-approved ballot measure to legalize recreational marijuana.

In Oakland County, prosecutors are proceeding as if the law is in effect and tossing pending cases that apply in the district and circuit court systems, said Paul Walton, the county's chief assistant prosecuting attorney.

"We began looking at this a while back," Walton said. "We are going through files now and evaluating those and when appropriate, those charges will be dismissed."

The prosecutor's office does not have a large backlog of marijuana-related cases that are pending review.

Civil possession is not frequently brought in Oakland County, he said. Rather, it's often dealt with as an "add on" charge that accompanies other offenses, including traffic stops in which drugs or concealed weapons are found. 

"Any cases submitted to us, we're going to have to review with all the new laws in mind," he said. "There are still ways to violate the marijuana statute."

Doing away with simple misdemeanor possession cases is something Michigan Attorney General-elect Dana Nessel said she's encouraging for county prosecutors in the state.

"I would encourage county prosecutors not to pursue those cases because what’s the point? Voters of this state have decided that should be legally appropriate behavior if a person is 21 or over," Nessel told The Detroit News. "I think it's a waste of resources and I don't think it's really benefiting anyone."

Michigan voters on Tuesday passed Proposal 1 with 57 percent approval, making the state the first in the Midwest to legalize recreational marijuana, according to unofficial results. 

The initiative will allow adults over the age of 21 to possess up to 2.5 ounces of marijuana and grow up to 12 plants per household. Michigan will become the 10th state to legalize marijuana possession and its use.

With its passage, possession will become legal immediately after the state law goes into effect, which would be 10 days after the Nov. 6 election results are certified.

Wayne County Prosecutor Kym L. Worthy said in a statement to The Detroit News on Thursday that her office is committed to following the law regarding the prosecution of marijuana cases.

The smaller cases, she noted, are "overwhelmingly" prosecuted by city attorneys. The same is the case in Oakland County, where Walton said lower level marijuana cases are issued at the city attorney level as an ordinance violation among the county's 47 communities. Officials with the Macomb County Prosecutor's Office could not be reached for comment. 

Wayne County, Worthy said, does currently have ticketed ordinance violations from the Michigan State Police that are pending review.

"Although the law is not retroactive, in the coming weeks, we will assess the tickets that have already been charged, as well as those pending review, taking the new law into consideration," she said. 

Prosecutors throughout the state can maintain existing cases that were charged prior to the adoption of the law, or elect to dismiss them, said DJ Hilson, president of the Prosecuting Attorneys Association of Michigan.

"Each individual prosecutor has the ability to make an independent decision on what they want to do with their current cases and ultimately, when the legislation is put in place, we'll do what we always do, which is follow the law as its written," said Hilson, who is also the prosecutor of Muskegon County.

"Certainly, individual prosecutors are starting to make these decisions," he added. "As an organization, we're going to respect each and every one of them for whatever decision they make."

For his part, Hilson said Muskegon County intends to review all of its pending cases and he doesn't believe there are many. Most of the county's marijuana charges are tied to other crimes. 

"Whether or not we choose to maintain that charge on that particular file or dismiss it as part of plea bargain of some kind, we haven't made that call," he said. "It's a matter of pulling files."

Michigan State Police released a statement after the passage of the law, noting Michigan's criminal justice community will need to implement new policies that account for the legal use and possession of the drug by persons of age under the new law.

"The MSP will consult with the Michigan Attorney General’s Office to determine specific impact on existing department policies and procedures, and will then train our members to ensure the new law is applied appropriately," the statement reads.

On Wednesday, Gov.-elect Gretchen Whitmer indicated she will pursueexecutive action or legislation to free inmates and expunge criminal records for those convicted of marijuana crimes that will become legal under the state's pending recreational marijuana law.

Nessel, an advocate for the legalization proposal, said she's supportive of legislation aimed at clearing records for low-level marijuana offenses "so people aren't saddled with these convictions for the rest of their lives."

The ballot initiative, from the Coalition to Regulate Marijuana like Alcohol, prohibits marijuana consumption or smoking in a public place or private location where the owner forbids it, and it won’t override workplace drug policies.

The measure also allows for the licensing of businesses that grow, process, test, transport or sell marijuana with three classes of cultivator licenses. 

The law, state police said, does not change the state's impaired driving laws, "which means that driving under the influence of marijuana remains illegal."

The U.S. Attorney's Offices in Michigan, meanwhile, are also making clear that marijuana remains prohibited under federal law.

U.S. Attorneys Matthew Schneider and Andrew Birge in a Thursday statement stressed: "We will continue to approach the investigation and prosecution of marijuana crimes as we do with any other crime."

"Because we have taken oaths to protect and defend the Constitution and the laws of the United States, we will not unilaterally immunize anyone from prosecution for violating federal laws simply because of the passage of Proposal 1," the statement says. "We will consider the federal law enforcement priorities set by the United States Department of Justice, the seriousness of the crime, the deterrent effect of prosecution, and the cumulative impact of the crime on a community."

The U.S. Attorney's offices said that combating illegal drugs "is just one of our many priorities." The office also is focused on prosecuting terrorism, violent crime, gangs, corruption and fraud as well as combating the national opioid epidemic.

"Our offices have never focused on the prosecutor of marijuana users or low-level offenders unless aggravating factors are present," the statement adds. "That will not change. Nevertheless, crimes involving marijuana can pose serious risks and harm to a community."

The office said it will continue to work closely with federal, state, local and tribal law enforcement to assess "every case as it comes in."

"When we act, we will act in the interests of public health and safety," the statement says.