Brave New World? States Take First Steps Towards Decriminalization of Hallucinogens

Photo: Shuttershock/anitram

While the debate regarding the legalization of marijuana has occupied the forefront of the national stage, an argument to decriminalize another class of prohibited substances has also been building steam: hallucinogens.  Currently, hallucinogens like psilocybin, colloquially known as “magic mushrooms,” are classified by the Drug Enforcement Administration as a Schedule I drug, in the same category as heroin, LSD, and ecstasy.  Under their current classification, these drugs have no legally recognized medicinal benefits and can carry heavy punishments, per the United States Sentencing Guidelines.  However, both Denver, Colo., and Oakland, Calif., passed resolutions within the last year decriminalizing the use and possession of limited psychedelic substances, along with efforts underway in more than 100 other jurisdictions to decriminalize psychedelics in some capacity.

It is important to note that decriminalization is not legalization, as the two are often confused.  In Denver, Initiative 301, which passed with 50.5% of voter support, allows adults over the age of  21 to possess mushrooms for personal use, and has made punishments for possession the lowest priority for law enforcement.  Technically, psilocybin is still illegal both federally, and at the state level in Colorado.  Furthermore, the resolution did not create a regulatory framework for the sale or cultivation of mushrooms, although the language is vague enough to arguably permit for individual consumers to grow their own product.

Likewise, in Oakland, the resolution for decriminalization does not mean freedom from consequences, as a local illegal marijuana and magic mushroom dispensary branding itself as Zide Door Church of Entheogenic Plants was raided in August of 2020 in connection with growing and selling illicit substances.  However, the Oakland measure is broader than Denver’s resolution and extends to other varieties of plant-based psychedelics, such as ayahuasca, mescaline, and ibogaine.  The Oakland resolution also excludes the word “personal,” as lawmakers in Oakland have seen the difficulty that the Denver District Attorney’s office has experienced in defining what qualifies as appropriate quantities for personal consumption.

The checkered history of psychedelics has contributed to long-standing public mistrust of hallucinogens

Used by indigenous peoples for centuries, psychedelics were often employed as a means of spiritual and medical healing, and were considered a valuable cultural component.  Conversely, psychedelics in the modern United States have a more unsavory history.  Although initially viewed as a useful and acceptable treatment for diseases such as alcoholism in the 1950s and 1960s, public opinion changed gradually as the drugs began to be associated with the counterculture movement.

In 1968, LSD was banned nationwide and included in the Controlled Substances Act of 1970 under its current classification.  Psilocybin was likewise included in the Act.  Perhaps the most disturbing and well-known case involving hallucinogens was the CIA experiment conducted between 1953 and  1964, where unsuspecting patients were experimented on to test methods of mind control, often leaving the subjects with life-long traumatizing mental, physical, and emotional scars.  Less damaging but also of questionable morality was the infamous Harvard Psilocybin Project, conducted in the 1960s by Harvard psychologists Timothy Leary and Richard Alpert on students that led to their untimely dismissal from the faculty.

Proponents of decriminalization argue that hallucinogens have valuable scientific and medical insights to offer society

Despite hallucinogens’ checkered past in the United States, scientists have begun reviving interest in the potential benefits of the drugs in much more tightly controlled and ethical studies.  Much like proponents of marijuana, who advocate for legalization based on the drug’s purported health benefits, a small but steadily increasing subset of the scientific community continues to tout measurable benefits stemming from hallucinogenic organisms.  At present, the research on hallucinogens is still fairly limited, particularly given that the research is mostly funded by private philanthropic donors due to federal restrictions, but some studies have published promising results concerning the drugs.

A 2006 study conducted by Johns Hopkins researcher Roland Griffiths, largely considered the foundational work on modern psychedelic research, determined that a single dose of psilocybin was not only safe but also had marked positive effects on test participants.  In 2016, researchers conducted a randomized and double-blind study focusing on the use of psilocybin to decrease depression and anxiety in cancer patients.  The results showed that 80% of the patients in the study were less depressed and anxious than at the start, even six months after the study ended.  Another study conducted by Johns Hopkins researcher Matthew Johnson similarly found that psilocybin was useful in reducing subjects’ dependence on tobacco.

The number of these successful studies is likely to continue to grow, particularly given the launch of Johns Hopkins new Center for Psychedelic and Consciousness Research, where researchers are studying psilocybin and other hallucinogens as a way to treat opioid addiction, Alzheimer’s disease, post-traumatic stress disorder (PTSD), post-treatment Lyme disease syndrome, eating disorders, and alcohol abuse.

Detractors of decriminalization cite the need for patience before moving forward

The results of recent medical studies might be promising, but a large percentage of the public remains skeptical.  In a 2016 poll of 1,994 registered voters, only 22% of those surveyed reported support for legalization of psilocybin, and only 18% for LSD.  Some policymakers, like Councilman Loren Taylor in Oakland, have expressed concerns that those urging for decriminalization have not thought through the possibilities for abuse, particularly in school settings.  Others, like Denver D.A. Beth McCann, believe that more time is needed to study the consequences of legalizing marijuana before forging ahead with the decriminalization of mushrooms.  Even for those who are cautiously optimistic about the potential benefits of hallucinogens, there is concern that rapid expansion into mainstream use could create a political backlash that might ultimately set the movement back.  Some supporters are also concerned that over-regulation of plant-based psychedelics could restrict access to those who might need it most, such as those who would grow the plants and home for personal reasons.

The path ahead for introducing hallucinogens to the mainstream may not neatly parallel that of marijuana legalization

Although it seems natural to look for parallels between the legalization of marijuana and psychedelics, several key distinctions might make the way forward for psychedelics very different from marijuana.  One of the primary arguments for legalization of marijuana centers on the high number of arrests made related to the drug, with 663,000 arrests made in 2018 alone.  Of these arrests, very few are tied to large busts or kingpins.  Instead, they target individuals, often minorities, who possess relatively small amounts.

Conversely, where many see arrests for marijuana as negatively contributing to the problem of mass incarceration in the United States, there is not a similar problem with high numbers of arrests for psychoactive substances.  To the contrary, from 2016 to 2018, Denver police only arrested approximately fifty people per year for charges related to psilocybin.  Additionally, at 0.1% of the population in 2014, users of psychedelics constitute a minuscule fraction of the national population compared to marijuana users, making the potential commercial market much smaller than the booming marijuana industry.

Changes in hallucinogenic related enforcement laws have continued making their way throughout the nation this election season.  In one of the more dramatic policy shifts, Oregon voted to decriminalize not only hallucinogens but all drugs during the 2020 election, shifting the focus towards rehabilitation efforts instead of penal repercussions for possession.  Unlike the Denver and Oakland measures, the Oregon resolution would only allow psilocybin therapy at licensed centers under the supervision of professionals, as opposed to commercial sale or personal consumption.  Washington, DC just voted to decriminalize the growing, possession and noncommercial distribution of hallucinogenic mushrooms, and Rep. Jeff Shipley of Iowa proposed similar legislation in February 2019 that would decriminalize the use of psilocybin in his state, although it has yet to pass.

Now that the votes are in, it appears that at least in this election, decriminalization of hallucinogens picked up steam throughout the country.  It remains to be seen if this trend will continue in future election cycles.

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About Kayla McDaniel (3 Articles)
Kayla McDaniel is a third-year law student at Campbell and currently serves as a Staff Writer for the Campbell Law Observer. She is originally from Raleigh, North Carolina, and received her undergraduate degree in Professional Writing and Spanish at Western Carolina University. She is interested in pursuing a career in civil litigation. Her interests outside of law school include yoga, hiking, and traveling.