Sean McAllister, Esq.

The psychedelic renaissance is moving ahead full-steam; Denver decriminalized personal use and possession of psilocybin mushrooms; Oakland and Santa Cruz went farther and decriminalized a broad set of activities around all naturally-occurring psychedelic substances, known as “psychedelics,” “sacred plants” or “entheogens.” For more information on the Denver and Oakland initiatives, see my previous article in Chacruna.1 However, what does “decriminalization” mean in practice right now?

It is clear many people are confused by what decriminalization means and may be putting themselves at risk for criminal prosecution if they proceed carelessly.

Shortly after Denver decriminalized magic mushrooms, the Denver Post published a piece called “Psychedelic Industry Sprouting in Denver after Decriminalization”.2 Some immediately declared that, in Denver, distribution of magic mushrooms would have legal cover as a result of decriminalization.3 Mental health counselors in decriminalized cities are offering psychedelic-assisted therapy.4. Retrieved from https://www.saraouimette.com/psychedelic-integration] Retreat centers are offering events where people can come and do sound healings, yoga, or other activities while under the influence of psilocybin. It is clear many people are confused by what decriminalization means and may be putting themselves at risk for criminal prosecution if they proceed carelessly. This article examines some of the most common issues or ambiguities around decriminalization in these three cities.

Personal Possession

Denver, Oakland, and Santa Cruz all decriminalized the personal possession and use of psilocybin (Denver) and a series of plants and fungi (Oakland and Santa Cruz). However, none of the initiatives sets a clear limit on what you can legally possess. It is fair to say that relatively large quantities of psychedelics could be justified as “personal possession” because the amount each person uses varies widely depending on their situation. Someone might legitimately possess a large quantity in order to ensure a supply for as long as a year. In addition, when mushrooms, for example, are first harvested, they weigh much more than when they are dried (likely losing 90% of their weight).  These factors might justify personal possession of many ounces or even pounds of psilocybin or other psychedelics.

Without clear guidelines, there is no obvious line for consumers to know when they have too much. Law enforcement in Denver has mentioned they intend to focus on whether there are indicia of distribution when determining if someone is in possession for personal use or possessing with intent to distribute, which remains a crime in Denver and Santa Cruz. Therefore, if someone has a client list, or large volumes of cash, or psychedelics packaged for sale, these could be grounds for a criminal charge. In light of these uncertainties, a cautious approach to personal possession quantities seems appropriate.  

Possession of psilocybin by people under 21 is not decriminalized in Denver. In fact, the only prosecutions in Denver since decriminalization in May 2019 were for possession by two juveniles.5 Similarly, juveniles are not covered by the protections in the Oakland and Santa Cruz laws.

Cultivating

Cultivation of psilocybin for personal use in Denver is decriminalized; personal cultivation of psilocybin and other entheogens is decriminalized in Santa Cruz. Oakland’s law appears broader because it decriminalizes both cultivation and distribution of all entheogens and doesn’t limit cultivation for personal use only. This suggests that cultivation of entheogens in Oakland for purposes of distribution is decriminalized.

Some have questioned whether individuals can join together and engage in large-scale, collective grows.

Some have questioned whether individuals can join together and engage in large-scale, collective grows. For example, would it be legal in Denver for 20 people to join together and all cultivate a “personal possession” amount of psilocybin? This remains an ambiguity. Law enforcement and public health officials have expressed concerns that this practice could be a way to circumvent the intent of the law. To minimize their exposure to potential prosecution, anyone considering conducting a collective or shared grow should consult with an attorney before moving forward in any of these cities.

Sale, Distribution, and Sharing

Oakland’s initiative decriminalized distribution of all entheogens. However, the sale or distribution of psilocybin for any compensation is not clearly decriminalized in Denver. The ordinance is vague on whether distributing or sharing psilocybin without compensation can still be prosecuted. Because the initiative says “sale or distribution for remuneration” (a fancy word for compensation) is not allowed, does that mean distribution or sharing for free is allowed? It remains unclear, and it is one of the topics the Mayor’s Psilocybin Mushroom Policy Review Panel intends to address in its report due in early 2021. This is a concern because there is a state law in Colorado that makes the sharing up to four grams of a schedule I substance like psilocybin a felony.6 Because the decision to prosecute individuals would typically be left up to the District Attorney of Denver, it seems unlikely a simple case of sharing would be prosecuted, but it remains possible. Similarly, Santa Cruz’s decriminalization of all entheogens does not include a clear provision decriminalizing sale or distribution.

There are rumors that businesses in decriminalized cities are beginning to give away psychedelics for “free,” as long as a patron buys some other product or service. This was common in the early days of cannabis regulation in Colorado, prior to the opening of licensed stores. People would offer “free” cannabis if a customer bought a pipe or some other product. However, this approach is not likely to fool law enforcement. While it may be tolerated for a time, it could certainly be argued the psychedelic is not “free” if you have to buy another product or service. If a product is truly free, you don’t need to buy anything to get it. This arrangement could be seen as requiring remuneration or compensation for the product and therefore makes one guilty of distribution for profit.

Finally, it is important to remember that distribution of any drug in any of these cities remains illegal under federal law. In Colorado, the magic mushroom dealer noted above who claimed decriminalization would provide cover for his activities has already suffered a federal raid.7 In addition, the Denver and Santa Cruz initiatives specifically make clear that sale to minors remains a crime. The bottom line is, anything related to distribution or sales creates potential danger, and people should talk to a lawyer before engaging in any of this behavior.

Importing or Exporting

Importing or exporting psilocybin into Denver or Santa Cruz is not decriminalized. The Oakland law is much broader and may support an interpretation that important or exportation is decriminalized because transporting, distributing, and engaging in practices with entheogens is decriminalized there. However, it would be a very risky move to mail psilocybin out of any of these cities. The U.S. Post Office and private carriers like UPS do watch for illegal drugs in their shipments and have a history of reporting potentially illegal activities to law enforcement for potential prosecution.

In addition, the Decriminalize Nature Oakland campaign has received some criticisms from Native Americans concerned that, by decriminalizing all entheogens, the initiative may incentivize people to harvest peyote in the wild. The exact status of the peyote population is not known, but it is believed to be threatened in its natural habitat and is listed as “vulnerable” by the US Fish and Wildlife Service. It would certainly not be legal to drive from Oakland to Texas to harvest and bring back peyote. The possession of any of these substances that are decriminalized outside of Denver, Oakland or Santa Cruz is illegal under all applicable local, state, and federal laws outside of the decriminalized cities.

Finally, much of the ayahuasca in the United States is imported from South America. This is clearly not legal under U.S. law, even if you are importing it into a decriminalized city. The first two ayahuasca prosecutions in the United States were related to people attempting to import the substance across the border.8 Many source countries, like Brazil, have also outlawed the exportation of ayahuasca from their countries. Therefore, any international importation or exportation of ayahuasca or other psychedelics is not protected by municipal decriminalization efforts.

Public Use or Intoxication

Law enforcement has been particularly concerned about people thinking they can come to Denver and be intoxicated in public.

Public use or intoxication is explicitly not decriminalized in Denver. The Santa Cruz and Oakland laws are silent on this topic, but they do not clearly legalize public use. Law enforcement has been particularly concerned about people thinking they can come to Denver and be intoxicated in public. It is never a good idea to be intoxicated in public, as psychedelics normally are more appropriate for a private and safe setting.

Bring Your Own Events

As an attorney advising people about the meaning of the decriminalization efforts in both Colorado and California, I have been contacted by entrepreneurs seeking to invite people to public or private events that are welcoming of, or even provide, psychedelic substances. There are numerous issues with this concept. First, if these events offer some way to obtain the psychedelic substance, they would then be seen as distributing or being an accessory to distribution, which are not clearly decriminalized in Denver or Santa Cruz. Next, if you merely allow people to bring and use psychedelics at the event, there are nuisance laws in both California and Colorado that could be used by local governments to shut down the activity under civil, not criminal, law methods, such as an injunction. Finally, it is likely that any event operator tolerating or encouraging psychedelic use would be unable to get insurance for the activity and would therefore be exposed to substantial financial risk if anyone is hurt or dies during the event. These barriers have generally dissuaded most people interested in this model from carrying it out. That being said, there is likely a robust underground scene of events, ceremonies, and raves that clearly tolerate or encourage these activities without this being the explicit business model. Anyone considering such an event or project should consult with an attorney first.

Psychedelic-Assisted Therapy

As a general matter, the risk for therapists is higher around preparation, using psychedelics with clients, and obtaining the psychedelic substance for clients.

A growing number of mental health counselors, therapists, and psychiatrists are interested in engaging in psychedelic-assisted therapy for patients. A full discussion of this complex topic is beyond the scope of this article. Most mental health professionals are licensed by state licensing boards that have not addressed whether psychedelic-assisted therapy is ethical. Regardless of decriminalization, therapists and psychiatrists could risk losing their professional licensure if they engage in conduct deemed unethical by their governing board. As a general matter, the risk for therapists is higher around preparation, using psychedelics with clients, and obtaining the psychedelic substance for clients. These activities appear more like criminal conduct under state law, even if the use, for example, is legal under city law. Any therapist or mental health professional interested in taking advantage of the decriminalization efforts in Denver, Oakland, or Santa Cruz should consult with a lawyer before doing any of this work. None of the decriminalization laws provide explicit protection for psychedelic-assisted therapy.

Conclusion

In addition, the psychedelic community has an obligation to avoid perpetuating naïve narratives about alleged legal rights and to discourage flagrantly exploiting these laws in a way that could limit the movement in the future.

We are in the early days of a growing movement to liberate psychedelics from decades of illegality and ignorance. The initial decriminalization laws in Denver, Oakland, and Santa Cruz create enormous opportunities for new freedom and progress, but they also create hazards for careless, misinformed, or reckless people. As explained above, although many activities are now low law enforcement priorities, others remain illegal. With these laws being so new, a cautious approach is appropriate to protect yourself from unwittingly becoming the target of criminal prosecution or other negative consequences. In addition, the psychedelic community has an obligation to avoid perpetuating naïve narratives about alleged legal rights and to discourage flagrantly exploiting these laws in a way that could limit the movement in the future. Now, more than ever, is the time to act responsibly, talk to a lawyer before engaging in areas where the law is unclear, and contribute to the movement to further reform the laws around psychedelics.


Disclaimer:

This article is intended for educational purposes only and is not intended to provide legal advice to any reader. No legal reliance, express or implied, should be made based on the statements in this article. Anyone considering becoming involved with psychedelic substances in any manner should consult their own lawyer prior to undertaking any such activities. No attorney/client relationship is established between the reader and Chacruna or the author by virtue of reading this article.

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References

  1. McAllister, S. (2020). Will psilocybin decriminalization expand in 2020? Psilocybin initiatives in Denver, Oakland, Chicago, California, and Oregon. Chacruna.net. Retrieved from https://chacruna.net/will-psilocybin-decriminalization-expand-in-2020-psilocybin-initiatives-in-denver-oakland-chicago-california-and-oregon/
  2. Kenny, A. (2019, August 23). Spores of a psychedelic mushroom industry are sprouting in Denver after decriminalization. The Denver Post. Retrieved from https://www.denverpost.com/2019/08/23/psychedelic-mushrooms-denver-decriminalization/
  3. McCormick-Cavanagh, C. (2019a, May 15). Psilocybin dealer on life after decriminalization in Denver. Westword. Retrieved from https://www.westword.com/news/psilocybin-dealer-on-life-after-decriminalization-in-denver-11343681
  4. Ouimette, S. (2020). Psychedelic integration therapy [commercial website
  5. McCormick-Cavanagh, C. (2019c, October 21). Denver police arrest two minors for mushroom possession. Westword. Retrieved from https://www.westword.com/news/denver-police-arrest-two-minors-for-mushroom-possession-11515959
  6. Colorado Revised Statute Title 18. (n.d.). C.R.S.18-18-405(2)(d).
  7. McCormick-Cavanagh, C. (2019b, October 15). DEA tracks down alleged Denver mushroom dealer using news articles. Westword. Retrieved from https://www.westword.com/news/dea-uses-news-articles-social-media-to-track-down-alleged-denver-mushroom-dealer-11513764
  8. Breaking News: The first two ayahuasca convictions in the United States (2018, October 6). Chacruna.net. Retrieved from https://chacruna.net/breaking-news-the-first-two-ayahuasca-convictions-united-states/

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