The trend towards the decriminalization of marijuana in the United States occurred in the context of increasing public acceptance of the drug’s use. According to the Pew Research Center, in 1990, 16 percent of Americans said marijuana should be legal. By 2018, support for legalization grew to 62 percent. The significant shift in public opinion was caused in large part by the promotion of marijuana’s medical uses, a watershed moment for which came in 1996, when California became the first state to legalize medical cannabis. That event not only ended the public perception that marijuana and illegality were inherently linked, but it also helped shift the discourse around marijuana from primarily a crime issue to a health one.

Advocates for the decriminalization of psychedelics have been relying on the same strategy, i.e., the promotion of the medical uses of psychedelics as a means of changing the public’s perception of the drugs and, eventually, the laws related to their use and distribution. As Michael Pollan described in his recent book How to Change Your Mind, medical research into psychedelics came to a halt in the United States in the 1970s for various reasons that were unrelated to the medical findings themselves, including the drugs’ associations with antiestablishment figures like Timothy Leary and the CIA’s mind-control program, MK-Ultra. Psychedelics were also classified as Schedule I drugs, with no known medical benefits, under the Controlled Substances Act of 1970.

However, in recent years, there has been a revival of clinical research on the use of psychedelics to treat various illnesses, including PTSD, depression, anxiety, and addiction. The preliminary results have shown success in the use of psychedelics as potential therapeutic medicines. For example, a Johns Hopkins study on the use of psilocybin (the psychedelic prodrug compound found in so-called magic mushrooms) to treat depression and anxiety in patients with life-threatening cancer, found that “[h]igh-dose psilocybin produced large decreases in clinician- and self-rated measures of depressed mood and anxiety, along with increases in quality of life, life meaning, and optimism, and decreases in death anxiety.”

Based on these and other findings, researchers at Johns Hopkins recommended in an October 2018 article published in Neuropharmacology that psilocybin should be re-categorized from a Schedule I drug to a Schedule IV drug “such as prescription sleep aids, but with tighter control.” In the same month, the US Food and Drug Administration (FDA) gave a psilocybin-based drug for the treatment of depression a “breakthrough therapy” designation. The FDA provides this designation when “preliminary clinical evidence indicates that the drug may demonstrate substantial improvement over available therapy[.]”

As the promotion of the medical uses of psychedelics has gained traction, recent developments suggest that the decriminalization strategy may be working. Last month, voters in Denver, Colorado, approved a ballot measure “designed to decriminalize the use and possession of mushrooms that contain psilocybin” by: (i) deprioritizing “to the greatest extent possible, imposition of criminal penalties” against adults aged 21 and older for the personal use and possession of psilocybin mushrooms, and (ii) prohibiting “the City and County of Denver from spending resources on imposing criminal penalties” against adults aged 21 and older for the personal use and possession of psilocybin mushrooms. Advocates for the Denver initiative “spent months touting the potential medical benefits of psilocybin mushrooms to win public acceptance for a drug known more for its recreational use.” The language of the initiative itself cited the medical uses of psilocybin mushrooms.

Also, earlier this month, Oakland, California became the second U.S. city to decriminalize the use and possession of psilocybin mushrooms and other “entheogenic plants,” including peyote and ayahuasca. Specifically, the Oakland City Council voted unanimously to approve a resolution declaring that the investigation and arrest of adults “planting, cultivating, purchasing, transporting, distributing, engaging in practices with, and/or possessing Entheogenic Plants… shall be amongst the lowest law enforcement priority for the City of Oakland.” The resolution also “call[s] upon the Alameda County District Attorney to cease prosecution of persons involved in the use of” entheogenic plants. Like the Denver initiative, the Oakland resolution cites the medical uses of these psychedelics, including, specifically, the findings of the Johns Hopkins study noted above.

Although the Denver and Oakland initiatives were not examples of decriminalization in the classic sense of the word, i.e., where penalties for the use and possession of particular drugs are reduced to misdemeanors or fines at the state level, they were steps in that direction. In fact, this follows the same historical pattern as marijuana decriminalization, where Oakland and Denver were among the first few major cities to pass measures making enforcement of marijuana laws among the lowest city priorities in 2004 and 2005, respectively. Additionally, advocates are now working on getting statewide initiatives on the ballot in 2020 for the decriminalization of psilocybin mushrooms for medical or therapeutic uses in California and Oregon.

At the federal level, recent events also suggest growing (but still limited) support for research into the medical use of certain psychedelics. Earlier this month, Rep. Alexandria Ocasio-Cortez (D-NY) filed an amendment to remove a rider prohibiting the use of federal funds for “any activity that promotes the legalization of any drug or other substance in Schedule I.” According to Tom Angell, a summary of Ocasio-Cortez’s proposal states that psilocybin mushrooms and MDMA have “shown promise in end of life therapy and treating PTSD.” While the measure was defeated in a 91 to 331 vote, it furthered the promotion of the medical uses of psychedelics.

Given these recent developments, and the growing body of research supporting the medical uses of psychedelics, it seems that the marijuana decriminalization strategy may in fact succeed for particular psychedelic drugs (e.g., psilocybin mushrooms) in particular jurisdictions. This will result in the need for state and federal frameworks regulating the production and sale of psychedelics.

Author

Omid Uskowi is a senior associate in the Amsterdam office where he specializes in international white collar criminal investigations and compliance matters.