Latest posts by Ismail L. Ali, J.D. (see all)
- Is Medicalization the Only Way to Legalize Psilocybin and Ibogaine? - October 31, 2018
- A New Era of Psychedelic Policy? - December 18, 2017
Legalizing Psychedelics for Therapeutic Use is the First Step in a Long Road.
In the United States, the Food and Drug Administration (FDA) and Drug Enforcement Administration (DEA) regulate and enforce how drugs are researched, marketed, sold, and, in some cases, criminalized. The scheduling framework and varying levels of control over these substances, implemented by FDA and DEA, is apparently based on the substances’ safety for humans, medical value (or lack thereof), and abuse potential. Despite the fact that paltry scientific evidence was presented or sought to justify their criminalization when psychedelic substances were originally outlawed, the only way, besides Congressional intervention, to take them out of Schedule I—the most restrictive category—is to prove to the FDA that they are, in fact, safe for humans to take, have medical value, and are not as prone to abuse as originally asserted.
However, scientifically proving these claims relies on a narrow definition of medical value, and onerous, expensive regulatory requirements. Despite these obstacles, scientists, researchers, and therapists have made heroic efforts over the last few decades to produce sufficient scientific evidence to satisfy the FDA that some substances, like MDMA and psilocybin, are safe and have a demonstrated medical benefit.
the effort to destigmatize and legalize psychedelic substances via medicalization is a deliberate and strategic response to the original, flawed justification behind criminalization
In other words, the effort to destigmatize and legalize psychedelic substances via medicalization is a deliberate and strategic response to the original, flawed justification behind criminalization.
As a result, it is no surprise that medicalization dominates discussions about legal access at this time, and that it is the most visible portal thorough which organizations like MAPS and others have worked toward reviving cultural respect for psychedelic substances in the United States. Medicalization has some clear benefits. A medicalized scheme theoretically promises consistency in quality of product, reliability of service and care, and assurance of accountability in case of malpractice. There is no doubt a plethora of new scientific and medical uses for psychedelic substances that remain to be discovered.
That said, medicalization also comes at a cost, literally. The US healthcare system is unjustly inaccessible and unconscionably expensive. While state-legal cannabis flower now costs as little as $100 per ounce in some legal states, the FDA-approved GW Pharmaceuticals CBD-based epilepsy treatment, Epidiolex, is expected to cost $32,500 per year.
Federal medicalization of psychedelics has complicated implications, opportunities, and baggage. Although it is strategically sound, it is not the only route toward legal access, and there is an increasing interest in exploring other options, like citizen-led initiatives or legislation. These options have different costs, risks, and opportunities.
Cannabis Can Inform Where We Start, but It Can’t Show Us Where to Go.
In contemplating options for the future of legal access to psychedelic substances, the ever-evolving landscape of cannabis policy serves both as inspiration and as a warning. In the 1980s, cannabis advocates recognized that Congress was not going to reschedule cannabis anytime soon, and they weren’t wrong; although we are closer to rescheduling than ever, it hasn’t happened yet. At the time, seeking FDA approval for cannabis as a medicine by clinically proving the safety, medical value, and lower-than-claimed abuse potential of cannabis was also not a viable possibility. So, other options had to be explored and, in 1996, California passed Proposition 215, a citizen-led initiative that created a state-sanctioned medical cannabis scheme that operated as an alternative to the medical system as regulated by the FDA. Twenty years later, in 2016, California passed Proposition 64, another citizen-led initiative that legalized cannabis for adult use.
Legalizing and regulating cannabis independently of the federal government is a significant step forward, but it has had its limitations. Bringing the cannabis economy out from the underground has come with growing pains and wake-up calls: bureaucracies tend to be clumsy and, perhaps predictably, corporations have begun to take over the market. There is ongoing confusion about how to tax, regulate, and license cannabis under different schemes, and frameworks for state-regulated medical use of cannabis and other non-medical, adult-use or “recreational” schemes sometimes conflict under inconsistent or unclear standards and regulations.
That said, state-regulated cannabis systems have also modeled some helpful fundamentals for legal access: protection from criminal penalties for growing and using cannabis; access through home cultivation, cooperatives, or dispensaries; and availability of a variety of strains and methods of ingestion. Although the complications are real, a diversity of experience is theoretically respected and protected.
However, things are different now than they were 30 years ago, and today’s efforts must be analyzed based on today’s context.
Given this history, an optimistic observer could conclude that state-by-state, non-federally-approved medical or adult-use regulation of psychedelic substances is a viable option. However, things are different now than they were 30 years ago, and today’s efforts must be analyzed based on today’s context.
Efforts to Legalize and Regulate Psychedelics Must be Substantive and Strategic.
In the last few years, advocates in California, Oregon, and the city of Denver, Colorado have been making efforts to decriminalize or regulate psilocybin mushrooms through citizen-led initiatives
In the last few years, advocates in California, Oregon, and the city of Denver, Colorado have been making efforts to decriminalize or regulate psilocybin mushrooms through citizen-led initiatives. These efforts seem to offer an alternative to the federal medicalization of psilocybin, a prospect which has fostered ongoing dialogue about what a post-prohibition world ought to look like.
The California Psilocybin Legalization Initiative was a bare-bones attempt to decriminalize psilocybin use, possession, cultivation, sale, and transportation in California, which did not qualify to appear on the ballot in California after failing to get enough signatures in early 2018. Despite the potential for historic progress in my home state of California, serious concerns about CPLI’s leadership and strategy led some advocates, including me, to breathe a sigh of relief.
On another end of the spectrum, the complicated and crowded Oregon 2020 Psilocybin Service Initiative, initiated by the Oregon Psychedelic Society, will attempt to decriminalize psilocybin possession in Oregon, define a community-based service and regulatory framework, and create licensing and enforcement mechanisms under the Oregon Health Authority in order to allow access to guided psilocybin experiences.
Finally, the Denver for Psilocybin campaign is presently seeking signatures to its initiative to decriminalize the use, possession, and cultivation of mushrooms containing psilocybin (or psilocin, baeocystin, and nor-baeocystin) onto Denver’s May 2019 ballot. Decriminalization of any kind, even at a local level, would undoubtedly be a significant step toward a more equitable drug policy; however, it is also exactly the kind of progress that is likely to get immediate unfavorable attention from the federal government.
Ultimately, initiatives like these require significant financial and human resources; how do we know when it makes sense to fund and support them? Specific polling, a cohesive legal strategy, and experienced leadership, not to mention large-scale community organizing, would all go a long way to make psilocybin decriminalization a reasonable possibility in the near future. However, the threat of a backlash from failure, poor or reckless strategy, or political shortsightedness could cause harm to future efforts and the movement as a whole. We should proceed bravely, but with caution.
In the last few years, bipartisan legislators in Vermont (H 741), New York (AB 5449), and Maryland (HB 1207) have also proposed legislation to tackle the overdose crisis by funding pilot programs or research into the clinical use of ibogaine for opioid use disorder. HB 1207 in Maryland was discussed once again this year, but has stalled once again.
These programs have been informed by some scientific evidence (and decades of extensive anecdotal reports) of ibogaine’s efficacy in interrupting opioid withdrawal. Reports about ibogaine’s efficacy have reached lawmakers in a variety of ways, including, in some cases, through hearing about experiences of the children of their peers. This is undoubtedly evidence of how widely the impact of the overdose epidemic has spread, and perhaps also how the demographic and racial realities or perceptions of the crisis impact the government’s response.
These efforts to legalize at the state level, all of which follow a biomedical model of research and clinical treatment, have unfortunately stagnated. The legislative process, especially in today’s political climate, is inconsistent and unreliable… so can we afford to keep waiting for our representatives to make the right decisions on our behalf?
The “new era of psychedelic policy” that we are in offers many questions, and few clear answers. Knowing what we now know about cannabis legalization and the industry that is being built around it, it is challenging to justify policies that create exceptions for the legal use of some drugs while continuing to accept the on going criminalization of others. To that end, efforts to create legal access must be informed by efforts to fully decriminalize all drugs. This would mean completely abolishing criminal penalties for any use of any drug, which would encompass a complete reduction of punitive consequences for the use of psychedelics.
And although the legal and practical viability of the psilocybin initiatives themselves remain in question, efforts to decriminalize psilocybin are certainly starting a conversation which is long overdue.
That said, policy change is slow by design, and incremental progress is still progress. Especially given the unlikely possibility of progressive Congressional intervention in drug policy, state-level legislative interest in ibogaine is encouraging, and it signals a willingness to step out of the box that may only be possible in part because of advances in scientific research. And although the legal and practical viability of the psilocybin initiatives themselves remain in question, efforts to decriminalize psilocybin are certainly starting a conversation which is long overdue.
As with cannabis, it is true that psychedelic substances legalized or decriminalized under state law would remain illegal under the federal Controlled Substances Act. While previous administrations have formally taken a non-enforcement policy against well-regulated state-legal cannabis industries, there is always a risk that current or future administrations may act more punitively. Psychedelics do not have the same level of public support that cannabis does (yet); in their case, there is no reason to believe that any changes in state or local law that violate federal law would be respected by an unsympathetic Attorney General. As a result, legislatures willing to challenge federal law are playing with fire, and citizen-led initiatives are no more secure.
This leads us to an inevitable conclusion: until we vote in representatives with progressive, evidence-based, compassionate drug policies, the process of taking certain psychedelics through the FDA approval process grudgingly remains the way to create legal access that is most protected from politically inconsistent leadership.
Creating a Post-Prohibition Future Requires That We Acknowledge Our Limitations and Learn as We Go.
Cannabis legalization and progress in many movements outside of drug policy all have at least one central theme: that the changes we are seeking in the law require more than just new laws. They also require the support of a community that is stable and resilient enough to responsibly steward the associated social, ideological, and psychospiritual shifts in the status quo, especially in the face of bureaucracies, corporations, and decades of drug hysteria.
It is clear that this community support is growing, as more and more people recognize the value of the responsible use of psychedelic substances. However, ensuring legal, safe, and equitable access will require buy-in from people at every level of society and government, from our strongest supporters to our most ardent skeptics. Although the U.S. government’s institutions may not yet have the range to appreciate or even understand the complete scope of how psychedelic substances can be utilized to maximize our collective potential, and may continue attempting to fit octopus-shaped pegs into square holes, this people-powered shift could do more than just lead to the decriminalization or rescheduling of psychedelic substances; it could also fundamentally change how our society approaches topics like healing, spirituality, and personal growth.
The process by which we end the cruel and archaic criminalization of psychedelic substances—and replace it with safe, legal, and equitable access—will set the tone for a post-prohibition world. We should approach each of our steps forward in the same way one should approach the psychedelic experience: with respect, intention, and a willingness to learn as we go.
This paper was presented at Cultural and Political Perspectives in Psychedelic Science, a symposium promoted by Chacruna and the East-West Psychology Program at the California Institute of Integral Studies (CIIS), in San Francisco on August 18 and 19, 2018. The author would like to acknowledge Rachelle Yeung and Natalie Ginsberg for their feedback to this piece.