Oakland has long been a leader in drug policy reform and activists in the City continue to expand concepts of what is possible in terms of decriminalization of psychedelics or “entheogens.” In June of 2019, Oakland decriminalized nearly all non-commercialized activities related to entheogenic plants and fungi within its city limits. Now, Decriminalize Nature (“DNO”) is trying to take the next step within Oakland by having the city register providers and participants to use entheogens and is promising the city will defend these activities in court if necessary. This article provides an overview of the “Oakland Community Healing Initiative,” (“OCHI”) including highlighting the strengths, concerns and ambiguities about the OCHI. The entire OCHI is certainly groundbreaking and revolutionary and will have broad implications for efforts going forward to legalize, decriminalize, or regulate psychedelics.
The stated purpose of the OCHI is cast in terms of human rights, stating the purpose is “to recognize and protect the inalienable human right to develop a relationship with nature and to safely and responsibly seek to improve community health and well-being through use of Entheogenic Plants without fear and prosecution.” A copy of the proposal can be found here. Deepening this human rights commitment, the OCHI makes clear the purpose and intent is to focus first on the most vulnerable in society. The OCHI flags several groups as being obviously vulnerable; particularly, people of color, the formerly incarcerated, unhoused people, victims of domestic violence, and people who have been economically marginalized and lack adequate health care. As the OCHI points out, these groups experience “severe depression, suicidal ideations, aggression, anger, and feelings of hopelessness and destitution which inhibit their ability to find paths out of self-destructive thoughts.” These strong human rights statements suggest a new possible paradigm for psychedelic law reform, proposing to defend the most vulnerable among us first and thus creating a hierarchy of vulnerability of those deserving protections.
In terms of specifics, the OCHI would establish a framework for the City of Oakland to register Facilitators and Participants in a program allowing these registrants to receive special protections from the City for activities involving entheogens, such as the sacramental or ceremonial use of entheogens.
In terms of specifics, the OCHI would establish a framework for the City of Oakland to register Facilitators and Participants in a program allowing these registrants to receive special protections from the City for activities involving entheogens, such as the sacramental or ceremonial use of entheogens. Under the Ordinance, community-based organizations (“CBOs”) can recommend Facilitators and Participants to the City. Facilitators and Participants have to register with the City to receive protections under the Ordinance, which include (a) protections from arrest, prosecution, criminal sanctions, or civil consequences from the City; (b) a promise by the City to legally defend these registrants upon arrest or prosecution for activities involving entheogens, and (c) a commitment that the City will not assist the U.S. Drug Enforcement Administration in investigating any activity protected by the OCHI.
Facilitators who can provide entheogens under the Ordinance have to meet the following criteria: (a) be 21 or older; (b) live in the City; (c) be recommended by at least one CBO; (d) have at least 5 years of facilitation experience; and (e) agree to participate in a public health research program explained in more detail below. In addition, Facilitators must pay a $250 annual registration fee, complete an 8-hour training course on the City’s “Safe Practice Guidelines and Principals” (“Guidelines”), and agree to comply with those Guidelines.
DNO has drafted a version of the Guidelines. To review the draft guidelines, click here. The DNO draft Guidelines are very general and cover topics like information gathering, education to participants, preparation for the experience, set and setting, integration, implementation and community integration, and reciprocity to the community. The DNO draft Guidelines don’t lay out specifics on how entheogens should be delivered, but merely say that each of these abovementioned topics need to be addressed by Facilitators. DNO is actively encouraging feedback on the Guidelines and those with concerns or comments should reach out to DNO as soon as possible (to contact them, click here.) Given it appears that Oakland City employees or OCHI staff will make the final decision on the contours of the Guidelines, some Facilitators in the Oakland area worry the final Guidelines may be inconsistent with their traditional practices and they may not be eligible to participate in the OCHI (perhaps, for example, spiritual congregations that engage in multi-sacramental use or require donations for services which may be seen as commercial activities, as explained in more detail below).
The Ordinance says that “leaders” of participating CBOs will “meet regularly to review and offer changes and improvements” to the OCHI and the Guidelines. This suggests that CBOs will give input, but ultimately, it will be up to the OCHI and, presumably, Oakland employees or appointees to make these determinations with community input. The current draft of the Ordinance does not give an explicit role to Facilitators themselves in developing the Guidelines. The DNO proponents are adamant that certain details are left vague intentionally so that the community itself can assert itself, organize, and make clear what its priorities are. This is certainly a noble aspiration, but some worry this lack of clarity may not create an inclusive system that attracts widespread participation.
It does not appear that a CBO needs to have any background or experience with administering or facilitating entheogenic treatments to people.
As should be obvious, the CBOs recognized by the City of Oakland will be critical players under the OCHI. A CBO under the Ordinance is defined as “an organization with a long-standing strong reputation of providing services to vulnerable populations in the City including, but not limited to, providing services focused on restorative justice, social justice, violence prevention, supporting the formerly incarcerated, unhoused, victims of violence or domestic violence, and similar community-based needs.” Presumably, the OCHI (City employees or appointees) will determine what “strong reputation” means, but it appears vague at this point. It does not appear that a CBO needs to have any background or experience with administering or facilitating entheogenic treatments to people. Again, DNO proponents claim this lack of clarity is intentional and part of an effort to allow organic community to assert itself and control its own destiny.
CBOs will not be registered directly with the City and it does not appear the Ordinance is designed to protect CBOs in any way. Instead, CBOs will merely recommend Facilitators and Participants to the City for registration under the program and Facilitators and their Participants will receive actual protections under the Ordinance. While a CBO certainly could be a spiritual or secular group committed to good practices related to entheogens, nothing in the Ordinance requires that. In addition, existing spiritual communities or congregations in Oakland that are not recognized as CBOs by the City (because they may fail to meet the definition, for example) will not receive direct protection from this Ordinance, which may dissuade some from participating. While Facilitators do receive protections under this Ordinance, their broader organizations may not want to disclose themselves without any explicit protections under this law.
Without a doubt, many will be concerned about putting their name on a government list for using entheogens, even if that list is supposed to be protected and confidential.
Participants (those actually consuming the plant medicines) in the OCHI program have to reside in Oakland, be recommended by a CBO, complete a 4-hour training course on the Guidelines, and agree to comply with the Guidelines. Similar to the concerns about the Guidelines for Facilitators, it is unclear if the Guidelines will be amenable to large numbers of participants. It is also unclear if those most marginalized and vulnerable will be willing to go through such a formal process to receive these additional protections from the City. Given that nearly all activities related to entheogens are already effectively decriminalized in Oakland, with the exception of commercialized sales, what additional protections do marginalized people gain by participating in this program? Without a doubt, many will be concerned about putting their name on a government list for using entheogens, even if that list is supposed to be protected and confidential. While the OCHI protects confidentiality “to the maximum extent allowable under law,” this will not prevent state or federal prosecutors from obtaining the list as part of a valid subpoena or search warrant in a criminal case.
The promise to defend Facilitators and Participants in court has some significant limitations. The Ordinance explains that Facilitators and Participants will only be defended if they have a valid registration with the City, have acted in compliance with the Guidelines, and have not “engaged in for-profit cultivation, manufacturing, sales, distribution, or delivery of Entheogenic Plants for commercial purposes.” What constitutes “commercial” activity is vague in the OCHI. The initial draft says “commercial” means cultivating, processing, manufacturing, distributing, delivering, transporting, and buying and selling on large scales. What constitutes “large scale” is unclear. The draft ordinance says the City Attorney will define this somehow based on the “existing cannabis definition of commercial.” It is unclear how an analogy to cannabis will impact the definition of “commercial” in this context.
The psychedelic reform community has deep concern and a lack of consensus around what kind of commercial activity is ethical in this context.
Moreover, the prohibition on commercial “for-profit” behavior sounds salutary in principal, but in practice, could be hard to apply. Certainly, there are costs associated with the production and distribution of entheogens. Does this mean if any Facilitator charges any amount of money for an entheogen that they will not be protected? The psychedelic reform community has deep concern and a lack of consensus around what kind of commercial activity is ethical in this context. The Oakland initiative clearly chooses a side, but it may end up being impractical for many practitioners. If these plant medicines can only be given away for free, it is unclear how many will choose to participate in this program.
This author is doubtful the City of Oakland will agree to legally defend Participants and Facilitators, but of course, this would be an important advancement if it can be achieved. Because prosecution within the City is unlikely under the existing decriminalization ordinance, the most likely scenario is either a federal prosecution, a property forfeiture action by state or federal law enforcement, or a California Attorney General prosecution in state court. To take on this responsibility, the City will certainly need to spend significant resources on legal fees at a time when all municipalities are suffering severe budget shortfalls due to COVID-19. Moreover, attorneys for the City will also need malpractice insurance to defend against claims of poor representation. Given these costs, and the burden of defending people directly in Court, this author would be surprised if this provision passes the Oakland City Council.
Next, the Ordinance encourages CBOs and their partners to conduct research on the safety, therapeutic potential, and healing properties of entheogenic plant and fungi treatments. As noted, Facilitators are required to participate in the public health studies and Participants may, but are not required, to participate in these studies. Who conducts these studies, and the study topics, are not clear. It is not clear if this requirement will dissuade Facilitators from participating in the program given the general desire for anonymity on this topic and the unclear study requirements. Along these lines, the Ordinance requires the City to establish a task force of participating CBOs to “evaluate and design community-serving micro-economic opportunities for self-sufficiency in Oakland’s most vulnerable communities ….” The purpose and relation of this task force to entheogens is unclear and seems to be more of an economic study.
To the best of this author’s knowledge, there are neither studies nor substantial anecdotal evidence that show that the most vulnerable populations in Oakland are currently engaged in ayahuasca, iboga, peyote, or psilocybin mushroom circles.
Some have expressed concerns that the focus on a hierarchy of vulnerability may not take into account the needs of the most vulnerable. For example, because some unhoused or mentally ill people have dual diagnosis issues (both mental health and substance abuse problems), it may be inappropriate to administer entheogens to these groups prior to a period of sobriety or weening off prescription drugs, which may be impracticable. Next, there is no clear indication that these groups or their advocates are asking for this therapy, creating a question of whether this solution is imposed on vulnerable communities or is truly an organic need. To the best of this author’s knowledge, there are neither studies nor substantial anecdotal evidence that show that the most vulnerable populations in Oakland are currently engaged in ayahuasca, iboga, peyote, or psilocybin mushroom circles. Many advocates of the unhoused say that transitional housing is a first step to advancement, much more so than a psychedelic ceremony. Finally, while no one would disagree that people of color and marginalized groups deserve help, this Ordinance would not provide any protections to non-marginalized groups that may be using entheogens, such as middle-class people who also have significant needs. Some would prefer to see a much broader and comprehensive decriminalization of drugs to help marginalized communities and an assistance program that addresses or decriminalizes other drugs such as opiates or amphetamines, which definitely have more impact on marginalized communities.
DNO submitted the OCHI to Oakland Councilmember Gallo in July 2020. DNO is asking the City Attorney to review the OCHI over the next four weeks and provide feedback on the ordinance. DNO hopes to have the bill introduced to the Council by October 2020 and voted upon prior to the November elections.
Regardless of the concerns about this Ordinance, it provides a wonderful opportunity to work through the many ethical and practical problems associated with expanding the decriminalization of entheogens in Oakland. As a movement, we will need to be able to clearly articulate our values and priorities, and this Ordinance provides a thought-provoking framework for doing just that. As some have said regarding these initiatives, we either win or learn. Either way, thanks to DNO’s efforts, we will make progress in our ongoing efforts around psychedelic law reform.
Art by Marialba Quesada.
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