By Dustin Marlan
The “latest frontier” in drug law reform is the loosening of legal restrictions on psychedelics, such as psilocybin, ayahuasca, and ibogaine. But not all drug reform advocates are thrilled about this development.
Some are concerned that singling out psychedelics for legalization or decriminalization perpetuates the stigma surrounding other illegal drugs. Most prominently, Dr. Carl L. Hart, professor of neuroscience and psychology at Columbia University argues that all drugs “interact on receptors in the brain to produce their effects… we shouldn’t be treating some drugs as if they’re special while others are somehow evil.”
“Psychedelic exceptionalism” describes an ideology that claims psychedelics should be privileged for reform, but other purportedly more harmful drugs, like heroin and cocaine, should remain prohibited. As journalist Madison Margolin frames the question, “Should psychedelics be treated so differently from other drugs, given that any substance may have the power to soothe or scorch the human psyche, and body too?”
On one hand, treating all substances the same way is overly reductionist.
While drugs are all chemical agents from a neuroscientific point of view, different classes of drugs have vastly differing physical and subjective effects and risks of harm and dependence. And psychedelics, such as psilocybin, are perhaps singular in their relative safety and potential as therapeutic medicines for public health problems that have reached crisis proportions. According to one study, psilocybin ranked as the least addictive and dangerous substance out of twenty examined. Moreover, treating all drugs as unitary — i.e., lumped together into a single Controlled Substances Act — is how we got into the mess that is federal drug prohibition in the first place.
On the other hand, concerns about neglecting reform of non-psychedelic substances are warranted.
Focusing on psychedelics alone will not end the racist, ineffective, and draconian War on Drugs. In contrast to other controlled substances, arrests linked to psychedelics have been relatively infrequent and generally have not targeted people of color. Yet, over 1.5 million Americans are arrested for drug-related violations each year, often in connection with over-aggressive policing and racial profiling. Black Americans constitute only 15% of drug users in the U.S., but account for 37% of those arrested for drug violations. Nearly 80% of individuals in federal prison for drug-related offenses are either Black or Latinx.
But rather than perpetuating the stigma of other drugs, as some fear, psychedelic-focused state reforms appear to be shifting the Overton Window in terms of what is politically acceptable to the mainstream in terms of broader drug reform policies. Consequently, psychedelic drug reform is not occurring at the expense of other drug reforms. Instead, it paves the way for larger reforms, hopefully culminating in overdue changes to federal drug policy.
Recent examples in Oregon, Washington, DC, and Cambridge, MA, illustrate this phenomenon.
- In November 2020, Oregon voters passed the Psilocybin Services Initiative, which creates a statewide system for production and distribution of psilocybin, and its administration under professional supervision. Oregon voters simultaneously passed the Drug Addiction Treatment and Recovery Act (DATRA). Similar to Portugal’s drug decriminalization policy, DATRA decriminalizes the use and possession of limited amounts of all controlled substances. DATRA is expected to lead to a 95% decline in racial disparities for drug arrests and other criminal justice measures such as pretrial detentions and police stops.
- Also in November 2020, Washington, DC voters approved a ballot initiative to decriminalize the use and possession of natural psychedelics. The following month, the D.C. Council unanimously passed a measure removing criminal penalties for possession of drug paraphernalia for personal use, and allowing community-based organizations to distribute harm reduction supplies — desperately needed to prevent overdose deaths and the spread of infectious diseases.
- In February 2021, psychedelic activists in Cambridge, MA proposed a resolution to decriminalize psychedelics to the City Council. The Cambridge City Council adopted the resolution. However, in recognizing the devastating effect that the War on Drugs has had on vulnerable populations, the City Council also directed the city prosecutor and police force to stop arresting and prosecuting people for possession of any controlled substances.
These examples illustrate the lack of a strict dichotomy between psychedelic drug reform and the decriminalization of all substances. Both are occurring simultaneously at state and local levels.
Viewed through this lens, the harm of psychedelic exceptionalism appears to be more myth than fact. The Biden administration would thus do well to consider a two-tiered approach: (1) legalizing cannabis and certain psychedelics, particularly psilocybin; and (2) at minimum, decriminalizing other substances while prioritizing harm reduction strategies to address the current overdose crisis.
With respect to psychedelics specifically, the Biden administration should reschedule Schedule I controlled substances showing medical promise — including psilocybin and MDMA (ecstasy) — to allow for further research and uniform regulation for medical and, as appropriate, adult use purposes. Similar to the Cole Memorandum regarding cannabis enforcement, the Biden administration should pledge not to interfere with state psychedelic therapy programs such as Oregon’s Psilocybin Services Initiative. And it should push the DEA to allow patients with life-threatening illnesses access to psilocybin under federal and state “right to try” laws, notwithstanding the substance’s Schedule I status.
Dustin Marlan is an Assistant Professor of Law at the University of Massachusetts School of Law.
