decriminalization Archives - Green Market Report

Decriminalization of psychedelics continues to gain momentum in the U.S. It appears to be mirroring cannabis in how it is spreading, which is still a federally illegal substance now legal in 19 states plus the District of Columbia.

But there are moments of real concern about what decriminalization and legalization really mean in the bigger picture of a U.S. drug policy for both of these Drug Enforcement Administration Schedule 1 substances, which at times looks like it’s not much different than those of oppressive regimes around the globe.

Case in point: in the sentencing of U.S. WNBA seven-time All-Star center for the Phoenix Mercury Brittney Griner to nine years in a Russian penal colony for possession of a small quantity of cannabis oil. U.S. lawmakers have expressed outrage, even as their own constituents are still getting routinely locked up for the same offense.

The National Organization for the Reform of Marijuana Laws (NORML) Executive Director Erik Altieri released a statement about Griner that read in part that the time for platitudes is over. “The United States government needs to realize the current federal policy of marijuana prohibition and anti-marijuana laws in many states aren’t notably different than the stance held by Putin’s regime in Russia, and take real action to end those failed policies.”

Though the Griner case is about cannabis, there are similar concerns with psychedelics that also demonstrate the failed U.S. drug policy, even as psilocybin and other psychedelics work their way into mainstream medicine, sometimes in states where the harshest penalties for psychedelics possession still exist.

Life Imprisonment

Take Texas for example. According to the Texas Controlled Substances Act, a resident commits an offense if that person knowingly manufactures, delivers, or possesses with intent to deliver LSD—up to life imprisonment (Sec. 481.1121).  Same with ibogaine or mescaline—life (Sec. 481.113).  Same with psilocybin—up to life imprisonment (Sec. 48.113).

Yet Governor Greg Abbott (R-TX), on June 2021, allowed H.B. 1802 authorizing the study of psilocybin, MDMA, and ketamine to become law. Former Texas governor Rick Perry, an admitted “very anti-drug person,” called the bill “one of the most hopeful pieces of legislation that the members of the legislature have the opportunity to consider this session.”

And in Michigan, anyone using or possessing LSD, peyote, mescaline, or psilocybin can be found guilty of a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of not more than $500, or both. Yet Detroit passed Proposal E in November 2021, to decriminalize entheogenic plants (further defined as “magic mushrooms in the proposal) and fungi. More than 61 percent of voters supported the measure, with nearly 39 percent of voters opposed it, according to the city of Detroit’s unofficial election results. The Ann Arbor Michigan City Council had unanimously adopted a decriminalization resolution earlier, on September 21, 2020.

But even where psilocybin and some other psychedelics have been decriminalized, there is still a criminal attachment to it that some legislators feel obliged to include as a sort of nod to the DEA.

New Jersey reclassified possession of psilocybin in December 2020, as a “disorderly persons offense,” punishable by up to up to six months imprisonment, a fine of up to $1,000, or both, and is considering a more comprehensive bill, S2934, which authorizes production and use of psilocybin to promote health and wellness; and decriminalizes and expunges past offenses involving psilocybin production, possession, use, and distribution.

Decriminalization

Denver, the first city to decriminalize psilocybin, passed an initiative that called for the enforcement of any laws imposing criminal penalties for the personal use and personal possession of psilocybin mushrooms “shall be the lowest law enforcement priority in the City and County of Denver.” Oakland used the same phrase with its decrim Resolution No. 87731. So did Santa Cruz with its decrim Resolution No. NS-29,867. So did Detroit.

What that phrase means, exactly, is still a bit murky, and seems to be loosely defined by the whims of law enforcement, as was discovered with cannabis legalization in some areas when that phrase is left to their interpretation.

And that leads to the question: Is it time for the federal government to step in and provide real guidance, and some clarity, to psychedelics—instead of relying on a patchwork of confusing rules created by city councils and state legislatures?

Leading psychedelic advocates discussed issues in creating federal psychedelic policy during a panel at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School in April against the backdrop of the “psychedelics renaissance” in the U.S.

It was noted that, though many localities have made significant strides in addressing the legal questions surrounding psychedelic substances such as psilocybin and dimethyltryptamine (DMT), federal policymakers have not pursued similar initiatives.

For panelist Micah Haskell-Hoehl, founder of Healing Equity and Liberation (HEAL), working to create a justice framework for psychedelic decriminalization, regulation, and healing, an effective federal psychedelic policy is high stakes and requires bold action. “There’s no low-hanging fruit when it comes to federal psychedelic policy,” he said.

He said that he favors federal policy modeled after state legalization statutes, such as Oregon’s Ballot Measure 109. 

“A sort of lofty, longer-term, ideal goal would be federal decriminalization across the board of all drugs and the people who use them, and an attendant accounting for and repair of drug war harms and colonization,” he said.

But that brings up yet another side to the decriminalization discussion—psychedelic exceptionalism, an ideology that could be created by the decriminalization of psilocybin, for example, while keeping other drugs illegal.

Psychedelic decriminalization benefits people who only use psychedelics. “Psychedelic reform is essential to the larger goal of ending the War on Drugs, but as drug policy and social justice activists, we must be wary of the beliefs and stigma that psychedelic-only legislation can perpetuate,” according to the blog on the website of Students for Sensible Drug Policy.

So here we are today. A drug scheduling policy in the U.S. that outlaws psychedelic substances because they have no medicinal use, yet are turning out to be some of the best medicines for some of the oldest uncurable, untreatable human conditions. A 50-year-old “war on drugs” still oppresses people of color while states attempt to fix those disparities.

Maybe now, because of the global spotlight that Griner’s case has put on the drug policy issue, the increasingly sturdy science behind psychedelics, and the decriminalization movement gaining more traction across the country, we are reaching a critical mass to finally bring better medicine to help heal the country’s mental health needs. Maybe.

There has been an accelerating movement to decriminalize psychedelics, especially psilocybin, since May 2019, when Denver, Colorado became the first city in the country to decriminalize psilocybin through an initiative, in essence handing a small but significant defeat to the operatives running the War on Drugs. 

The War on Drugs has been an ongoing battle since it was begun by former president Richard Nixon in 1971 after various psychedelics (and cannabis) were listed as the worst drugs for human consumption by the Controlled Substance Act (CSA)—which has since been used as a government-approved source to create social injustice involving psychedelics.

Now the movement to decriminalize psychedelics has resulted in a deeper dive into the fabric of society as a movement for not just social justice, but for individual liberties, and even a different way of thinking that psychedelics provides (called cognitive flexibility) which could change how humans interact with each other in a positive way.

The decriminalization movement has continued over the last couple of years, with many resolutions, initiatives, or measures either directly or indirectly addressing the War on Drugs as their decriminalization rationale: Oakland in June, 2019, with a resolution; Santa Cruz in January, 2020 with a resolution; Ann Arbor, Michigan in September, 2020 with Policy 2021-06; Washington D.C. in November 2020 with Initiative 81; Somerville, Massachusetts in January, 2021 with a resolution; Cambridge, Massachusetts in February, 2021 with a resolution, which cited decriminalization as an effort to defeat the War on Drugs; Northhampton, Massachusetts in March, 2021 with Resolution R21.207; East Hampton, Massachusetts in October, 2021 with a resolution; Seattle in October, 2021 with Resolution 32021; Arcata, California in October, 2021 with Resolution 212-17; Detroit in November, 2021 with Proposal E; and Port Townsend, Washington in December, 2021 with a resolution, also referencing their decriminalization was an effort to end elements of the War on Drugs. 

The Port of Townsend included statements in its resolution that effectively decriminalizing entheogens (psilcocybin) “aligns with local values of personal freedom, connection to the natural world, social justice and reform of harmful societal structures/practices, seeking creative solutions to longstanding community challenges, progressive free-thinking, and alternative living (including in the realms of education, medicine, therapy, and healing).”

Efforts to decriminalize continue in New York, Vermont, California, Utah, Missouri, Connecticut, New Jersey, Texas, Florida and Hawaii.

Oregon went a step beyond decriminalization by legalizing psilocybin for therapeutic use with Measure 109 on November 4, 2020. Creating rules and reviewing licenses for legalized psilocybin in Oregon is expected to take awhile.

While the immediate effects of decriminalization so far have been to encourage more cities and states to examine and/or enact decriminalization, there is more going on here. As some of the city and state decriminalization resolutions have demonstrated, decriminalization has become a megaphone for advocates working to finally defeat the War on Drugs.

Decriminalization is a step forward from a policy standpoint, according to an article in the Lewis and Clark Review by Dustin Marlan, the assistant professor of law at the University of Massachusetts School of Law. It eliminates the “virtual or total loss of liberty imposed” under CSA prohibition. Decriminalization cuts down on arrests, imprisonments, and wasteful law enforcement practices, and “thus represents a realistic and pragmatic step toward ending the prohibition on psychedelics.”

Marlan wrote that the effects of psychedelic drugs could go beyond the relatively small and inconsistent effects of pharmaceuticals in healthy subjects, because they not only produce improvements in mood, but may also give access to states of consciousness and insights of great significance even after a single dose. “In doing so, psychedelic drugs may cater to a human need for meaning, connectedness and purpose; needs which it may be argued are widely overlooked in Western, individualistic cultures,” he wrote. “Indeed, psychedelics operate differently from modern medicine in that they provide users with powerful mystical or psychological experiences which can act as catalysts for changes in thought patterns and behavior.”

Charlotte Walsh, a legal academic at the University of Leicester School of Law, in discussing psychedelic law reform and reimagining psychedelic drug policy in the United Kingdom through a human rights prism, believes that “individuals should have the right to autonomous self-determination over their own brain chemistry, a right that is currently infringed by the prohibition of psychedelics.”

She wrote that, beyond the courts, it is recommended that a liberal, rights-based approach also inform psychedelic drug policy activism, moving past the current predominant focus on harm reduction, towards a prioritization of benefit maximization. “How this might translate in to a different regulatory model for psychedelic drugs, a third way, distinct from the traditional criminal and medical systems of control, is (under discussion).

“Whether or not it is believed that people should have to justify their psychedelic use on any grounds is bound up with one’s view of the proper relationship between the individual and the state, with whether or not it is believed that the latter has any business concerning itself with which substances the former choose to ingest,” Walsh wrote.

The power of psychedelics, and therefore the promise of decriminalization, is that it literally changes how people think. It changes lives in a powerful, profound way. And, hopefully, the good outcomes being reported in psychedelic clinical trials will change what more lawmakers think about it.

The War on Drugs is not over by a long shot. In fact, it continues today, as demonstrated by the recent incident with the mostly black Delaware University women’s lacrosse team on April 20th in Georgia. The team bus was pulled over by a group of white highway patrol officers for a traffic stop that quickly turned into a drug search of all of the team member’s luggage. A narcotics dog was brought in. No tickets were issued, no one was arrested. But the incident reeked of a war-on-drugs, guilty-until-proven-innocent profile incident. 

In a joint statement, Delaware U.S. Senators Tom Carper (D-Del) and Chris Coons (D-Del), along with U.S. Representative Lisa Blunt Rochester (D) termed the situation “deeply disturbing.” Delaware Attorney General Kathy Jennings called on the justice department to investigate.

But there is also a negative public sentiment about psychedelics to deal with, based on the long-standing stigma of psychedelics that the War on Drugs created and continues to reinforce. According to a Hill/HarrisX poll conducted in May, 2021, 65 percent of voters say psychedelic substances “do not have medical use.” 

But it’s a different story if you suffer from some form of mental illness. A more recent Harris Poll reported in January, 2022, that nearly two thirds of Americans who suffer from anxiety/depression/PTSD (65%) believe that psychedelic medicine (such as ketamine, psilocybin and MDMA) should be made available to patients with treatment-resistant anxiety, depression or PTSD.

Decriminalizing psychedelics has become the driving force to address the nearly one in five U.S. adults who live with a mental illness—52.9 million people in 2020. Experts predict even more mental illness cases to come as a result of the pandemic. If there was ever a moment in time for a new, better way to treat mental health, it’s now. All that remains to be done is finding the legal route to build acceptance of psychedelics-assisted mental health therapy, through or around whatever obstacles still stand in the way.