In the last decade, we have seen the tide finally begin to turn when it comes to legal restriction of access to psilocybin and other psychedelics. In the US, psilocybin has been a controlled substance since the mid-1960s, when the Drug Abuse Control Amendments of 1965 came into force to criminalize the “possession, manufacture, or sale” of “depressant, stimulant and hallucinogenic drugs"; the law that named psilocybin and psilocin specifically was enacted in 1968, and just two years later both substances were designated as ‘Schedule I’. The claim for drugs of this category was that they had:
no currently accepted medical use and a high potential for abuse.1
This is where we were stuck for a long time—not only in the US, but in many other parts of the world. Access to psychedelics not just for recreational and spiritual use but also for research purposes was repressed for decades. The ‘psychedelic renaissance’, however, is altogether changing things—and we can now imagine a time where access to psilocybin doesn’t carry the risk of jail time or a criminal record.
The question now is this: what should this future look like? How should we change the laws so that users of psychedelics (or, perhaps, users of any drugs) are un-criminalized? The answer is not as simple as you might think.
Broadly speaking, there are two options open to us as we seek to end the criminalization of possession and use of certain drugs: legalization and decriminalization. They sound very similar. But the devil is in the details.
Legalization of drugs refers to the removal of criminal penalties from the use and possession of drugs and the bringing of drugs inside a regulatory framework. This usually entails restrictions around the production or dissemination of formerly controlled substances (though, of course, this means they continue to be controlled to some degree). Some of these restrictions can include: minimum age limits for possession and purchase, limits on where you can use (consumption areas), restrictions on when you can buy it (sale times) and strict gatekeeping with regards to who is allowed to produce for commercial sale, and who is allowed to sell it. If a drug is legalized only for medical or research use, it is only legal to be used and possessed in a clinical setting, and there will be tight regulations on its storage and procurement by clinical practioners.
For instance: cannabis is now legalized in Canada, meaning that you cannot be prosecuted for possession of less than 30 grams of legally-produced cannabis, and you are allowed to grow up to four plants in your own home, for your own use. However, this does not mean that anyone and everyone can buy cannabis. You have to be 18 or older to buy and possess it, and 30 grams is the limit on how much you can possess. To buy it, you have to go to a licensed distributor: the annual fees for these licenses are currently $2,500 for a microgrow (up to 200 square metres of grow space) or $23,000 for a standard license. If you grow at home, its only legal to grow from “licensed seeds or seedlings”. The drug is legal only when purchased and possessed within these strict guidelines.
Decriminalization of drugs works differently. By this process, a drug remains technically illegal to both use and possess. However, criminal sanctions are effectively removed for the average user; whilst possession of large amounts may still be criminalized, and production and sale also remain subject to criminal charges, possession for personal use will incur no legal sanction. However, it may result in fines, restrictions of other freedoms or enforcement of a drug rehabilitation programme. The best practice case for decriminalization of drugs also requires a significant investment in public health and social support resources, as the intent is to reduce the harm from problematic use and support users for whom drugs have become a health issue. Under decriminalization, there is no legal route through which to buy drugs, as the sale of them is still illegal.
Legalization models are easy to understand, not least because cannabis has been treated this way in an increasing number of countries and US states. We are also all very aware of how alcohol legalization works. However, it can be more difficult to understand what decriminalization looks like in practice. Thankfully, we do have some useful, solid examples of this (though we should always bear in mind that the culture around drug use differs from country to country, and other factors like class, economic stability or lack of, police power, access to healthcare etc all have an effect on how these things work in any particular place). In the late 90s, Portugal was experiencing a worryingly high rate of HIV infection among its intravenous drug users; amongst its 10 million citizens, there were 2000 new cases per year. The number of heroin users ranged somewhere around 100,000.
In order to tackle this, the country built a progressive, health-focused response that changed the way it looked at drug use, stepping back from criminalization and instead prioritizing harm reduction methods and treatment resources. Access to safe needle sites and kits were expanded. Addiction treatment—including substitute drug practices, such as methadone programs for heroin users—was made available. Aftercare and social re-integration programmes were installed and properly funded. And in July 2001, the laws around the possession and user of drugs was changed.
From this date, the use and possession of all drugs in Portugal was effectively decriminalized. Though both remained technically illegal, the punishment for anyone possessing less than a ten-day supply of any drug was altered from a criminal punishment to an administrative one; gone was the risk that you would end up in prison. What happens instead is that your drugs are confiscated and you appear before a panel comprised of social support individuals, and if you are addicted to a drug you will be offered rehab and other treatment options. If you are not addicted, you may be fined, have your right to foreign travel revoked, banned from types of work in which drug use can endanger others, required to report back to the committee or sanctioned in another way.
It’s important to note here that drug use is not condoned. There are still real punishments here: if you are a doctor, your right to practice may be revoked. If you are in receipt of state financial support, these may be reduced or stopped. But you will not be imprisoned or otherwise legally charged with a crime for the possession or use of drugs.
The initial funding for these programs has unfortunately waned, and no programme or policy is without its drawbacks. But, as of 2021, the twenty-year data for the efficacy of this approach speaks for itself:
Drug deaths fell more than 90% (10 per million in 2020, compared to 131 in 2001)2
Injecting-related HIV diagnoses fell 98% (from 1300 in 2001 to 16 in 2019)
The percentage of the population in prison for drug offences fell 25% (from 40% in 2001 to 15% in 2019)
You might have read people (including us) speaking about decriminalization as the preferred way forward for psychedelics (and, many argue, all drugs). This might seem confusing, given that this does not result in the widespread acceptance of drugs legally speaking—and even in Portugal there are still legal repercussions for the possession of drugs over certain thresholds. However, as we have seen above, legalization does not result in broad access either, practically speaking. The question of who has access to drugs is arguably more restricted under legalization than decriminalization. Under decriminalization, there is at least the possibility of more democratic approaches to punishment/rehabilitation, whereas in legalization it’s normally those with money and power dictating the rules. From a social justice perspective, decriminalizaton is undoubtedly the preferred road to take.
For the last decade or so, the therapeutic use of psilocybin—alongside other drugs like MDMA and ketamine—has been brought once again into the realm of polite society. Real, substantive research into the medical and therapeutic use of these substances has definitively challenged the US government’s claim, stated in the Schedule I legislation, that these drugs have “no accepted medical use”. We continue to challenge the assertion that they have a “high potential for abuse”, as we did in this post, but the law is not interested in this argument, really.
The future we seem to be heading towards is one in which access to psilocybin is legalized, through the medical or therapeutic pathways, and perhaps for recreational use through a model similar to that of cannabis in Canada. The possibility of two new ‘psilocybin markets’ has venture capitalists and biotech companies rushing to invest and exploit these potential new profit-making landscapes, to the extent that the psychedelics market is predicted to be worth $7 billion by 2027.3 In order for them to successfully commodify these spaces, restrictions on who can produce and sell psilocybin and other psychedelics will have to be put in place.
But substances like psilocybin have been used for centuries for both spiritual and recreational practices, and the commodification of these substances—whether through medical or otherwise legal pathways—threatens to exclude as many people as it allows access to. The access to psilocybin through therapy is, and will likely remain, incredibly narrow—and it also restricts future access to psilocybin even for the people who have reached treatment. People who benefit from studies—perhaps with a cessation of the worst symptoms of their OCD, for instance—are excluded from further studies if their issues return. What does this mean for the ethics of this type of treatment, if we show someone a pathway for them to get better and then shut the door on them?
And if we reach legalization through a broader policy change, what will be required of a regular citizen in order for them to buy and use psilocybin? Will those who have reported prior mental health concerns to their doctors be banned from buying and using legal mushrooms? Will those with criminal records be allowed to use, or not? Would the price be affected? Legal restrictions on recreational purchase and use would likely exclude the poorest, sickest and most marginalized in our societies, only serving to exacerbate the enormous racial and class disparities we already face. As Carolyn Gregoire writes,
A rising movement within the psychedelic community is voicing concern that the emerging industry is poised to repeat colonial patterns that have appropriated Indigenous knowledge and led to the destruction of the habitats and communities from which these sacred plant medicines originate—while also making these new treatments inaccessible to many of the underserved populations who need them most.
Though it may seem counterintuitive, legalization of psilocybin may end up putting too much power into the hands of the law (and lawmakers). Drug reform groups, civil liberties groups and those advocating for the power of psychedelics without the goal of profit-making all state that decriminalization of psilocybin is the safest, most equitable way forward. Who are we to disagree?
https://www.dea.gov/drug-information/drug-scheduling#:~:text=Schedule%20I%20drugs%2C%20substances%2C%20or,)%2C%20methaqualone%2C%20and%20peyote.
https://transformdrugs.org/assets/files/PDFs/Portugal-drugs-decriminalisation-facts.pdf
https://www.prnewswire.com/news-releases/multi-billion-dollar-market-forecast-in-psychedelic-therapeutics-301151890.html
This was a great overview of the benefits and challenges with each approach. I’ve always been confused why this is an either/or conversation rather than looking at models that allow for decriminalization and a legalization path for therapeutic models. The decrimin path would keep the legal path in check, ensuring accessibility and undermining an artificially constrained market tendencies of “extract maximum profits” of the legalization-only model. This could commodify the substance itself, prioritizing costs for the therapeutic support that some but not all would need.