by Karina Bashir
The law helps establish legitimacy and inform societal norms—a role that becomes particularly pronounced in the field of psychedelics. Lingering stigma from the War on Drugs, despite the promising scientific potential of psychedelics, hinders the growth of the psychedelic industry and its public acceptance. The public’s trepidation is reflected in a recent survey conducted by the Berkeley Center for the Science of Psychedelics (“BCSP”) in 2023.
The survey results suggest that voters are open to psychedelic policy change but also have significant concerns. Of those surveyed, 61% of participants support a regulated legal framework for therapeutic use and 49% support removing criminal penalties for personal use and possession. Nevertheless, BCSP found that nearly half of those who support therapeutic access or decriminalization say psychedelics are not “good for society,” are not “something I am interested in learning more about,” and are not “something for people like me.” The survey results illustrate participants’ complicated opinions on psychedelics, which many respondents believe warrant increased access but are simultaneously not “good for society.” The findings speak to the lack of public trust in the psychedelic industry and the residual stigma associated with these drugs.
Legislation is one approach to addressing these concerns. As the law was instrumental in generating public fear through its criminalization of psychedelics, it will also be critical to reshaping stigmatizing narratives and alleviating fears surrounding these substances. Legislation is being proposed or enacted in dozens of cities and states to promote research, increase therapeutic and non-therapeutic access, and decrease criminal penalties associated with psychedelics. In 2020, Oregon made history by passing the Oregon Psilocybin Services Act, becoming the first state to legalize the production, sale, and supervised administration of psilocybin. In the same year, Oregon also passed Measure 110, decriminalizing personal possession and use of certain psychedelics. However, Measure 110 will be reversed with the implementation of House Bill 4002, which is scheduled to take effect in September 2024. Following Oregon’s lead, in November 2022, the state of Colorado successfully passed the Natural Medicine Health Act (“NMHA”) to decriminalize possession of and legalize supervised use of certain psychedelics statewide.
While efforts to regulate the psychedelic industry are gaining momentum, the current approach lacks consistency and coordination, which are critical to building a cohesive public narrative and ensuring safe and equitable access to psychedelics. Specifically, the challenge is two-fold: first, while legislative efforts are underway in around half of U.S. states, others are significantly lagging. Second, current legislative efforts to promote psychedelic-access are inconsistent and lack alignment. The fragmented legislation contributes to public confusion and may exacerbate the public’s apprehension regarding psychedelics. Moreover, the lack of clarity may create barriers to access, particularly affecting historically marginalized groups.
Though most local legislation proposes decriminalization, and some propose medical oversight and requirements for training and licensure, the regulatory framework varies, at times significantly, among cities (which have the ability to decriminalize and deprioritize), and states (which can legalize and regulate psychedelics). The historic stigmatization of psychedelics and the present lack of clarity makes it challenging for people to understand whether consuming psychedelics is socially acceptable, safe, and moral behavior or unacceptable, immoral, and dangerous conduct.
For example: Colorado’s NMHA allows for certain psychedelics to be possessed, shared, and used for personal use and allows individuals to be paid for the service of leading therapy sessions or ceremonies involving psychedelics. The NMHA provides a vague definition of “personal use” to include possession of the noted psychedelics in an amount considered “necessary” to share with others aged 21 or older “in the context of counseling, spiritual guidance, beneficial community-based use and healing, supported use, or related services.” The legislation’s broad language may inhibit clarity on what falls within the scope of legal possession. This could inadvertently stifle public education and detract from public support.
Further, inconsistent laws hinder citizens’ ability to understand the nuances of the law and result in unintended criminal consequences. With the exception of Oregon and Colorado, decriminalization measures presently enacted in U.S. states are limited to select cities, while psychedelics remain illegal in the surrounding areas. For example, Washtenaw county in Michigan includes Ann Arbor and Ypsilanti, two of the five cities that decriminalized psilocybin in the state. While a person in possession of 25 to 50 grams of psilocybin in Ypsilanti may face a minimal fine, driving 25 minutes west and crossing into Jackson County, which has not decriminalized psilocybin, could result in up to four years in jail.
Inconsistent legislation also may amplify historically marginalized communities’ vulnerability and thus influence attitudes and norms towards psychedelic use. Due to the higher legal risk these communities face, they may be less likely to explore, engage with, or seek information regarding psychedelics. According to the Vera Institute of Justice, a Black individual who uses drugs monthly faces a risk of incarceration in the federal system that is more than seven times higher than that of a White individual who uses drugs at approximately the same rate.
Fear of criminalization may contribute to the results of the BCSP survey, which found that African-American and Latino communities less frequently report a “first-degree” connection to psychedelics (personally using or having someone close to them use psychedelics), despite over half (51%) of all respondents reporting a first-degree connection. Further, hesitation to engage in psychedelics may also play a role in findings revealing that the majority (>80%) of study participants in clinical trials are White, which calls into question the generalizability of research findings to non-White populations.
In order to improve public trust and equitable access to psychedelics, activists, organizations, and policymakers engaging in psychedelic legislation across the country must take steps to co-create policy. Consistent legislation has the potential to enhance the cultural legitimacy of psychedelics while providing clarity on legality. This might in turn mitigate resistance to discussing, learning about, or otherwise exploring psychedelics. Further, coordination would likely improve the safety of psychedelics. For example, by establishing national or regional task forces to facilitate regular inter-state communication, share best practices, and standardize guidelines, cities and states could collaborate in addressing challenges both preventively and as they arise. This deliberate cooperation has the potential to reduce the stigma surrounding psychedelics, allowing it to instead reemerge, both in the public consciousness and in practice, as a safe and accessible therapeutic modality.
Karina Bashir is an attorney serving as of counsel with Antithesis Law, PC and is an incoming research scholar with Berkeley Law.
