The Movement to Decriminalize Psilocybin, Explained

Dustin Marlan

Introduction

The latest frontier in state and local drug reform has been the loosening of legal restrictions on psilocybin—the psychoactive compound in “magic mushrooms.” Like cannabis, psilocybin is a prohibited Schedule I substance under the federal Controlled Substances Act (CSA). Yet studies consistently find that psilocybin can induce positive psychological experiences effective in treating depression, anxiety, and substance use disorders, while enhancing the well-being of healthy individuals.

Over the last two years, several U.S. cities have decriminalized psilocybin either through ballot initiative or city council vote. In May 2019, Denver became the first city in the country to decriminalize “the use and possession of mushrooms containing the psychedelic compound psilocybin.” Since then, a decentralized organization known as Decriminalize Nature has led grassroots campaigns in over 100 U.S. cities to decriminalize psilocybin and other “entheogenic plants,” and expand access to their benefits. The efforts are gaining steam. Cities like Oakland, Santa Cruz, Ann Arbor, Washington, DC, Somerville, and Cambridge have all recently pledged to make psilocybin, as well as other natural psychedelics, their “lowest law enforcement priority.”

At the state level, Oregon passed two historic measures in November 2020: The Psilocybin Service Initiative (PSI 2020) and the Drug Addiction Treatment and Recovery Act (DATRA). PSI 2020 legalized supervised psilocybin-assisted therapy programs in controlled settings. It also created a regulated system for production and distribution of psilocybin within the state. DATRA decriminalized the use and possession of limited amounts of all controlled substances, similar to Portugal’s drug decriminalization policy. This means that people caught with small amounts of drugs (e.g., less than 12 grams of psilocybin or one gram of heroin) will not be arrested or jailed, but rather given the option to pay a $100 fine or attend a health assessment. Lawmakers in other states, including Florida and Connecticut, have since proposed laws that would legalize psilocybin for diagnosable mental health conditions, modeled on Oregon’s PSI 2020.

Psilocybin reform is an important development for at least two reasons. First, psilocybin is a promising compound that, if studied and used appropriately, can provide benefits to many. Second, psilocybin reform may spur a radical rethinking of the prohibition on other Schedule I substances, and can thus be a catalyst toward ending the racist and draconian War on Drugs.

Psilocybin and the Federal War on Drugs

Psilocybin prohibition can be traced to the 1970 passage of the CSA and President Nixon’s 1971 declaration of a “war on drugs.” The CSA remains the bedrock of a morality-based system of federal drug control and prosecution that has been mirrored by states and its ideology extended globally. It restricts the possession, manufacturing, importation, use, and distribution of drugs. Prohibitionist policies and ideology led to harsh and excessive sentences for drug offenses that have devastated communities of color.  

The CSA classifies drugs on a spectrum ranging from Schedule I, those alleged to have the highest potential for abuse and dependence, to Schedule V, the lowest potential. Schedule I drugs include psilocybin, LSD, MDMA (ecstasy), cannabis, and heroin. By comparison, Schedule II drugs include cocaine, methamphetamine, oxycodone, and fentanyl. According to Mason Marks, an assistant professor of law at Gonzaga University, “Schedule I is like a regulatory black hole because once drugs enter this category they rarely come out. There is an asymmetry between the standard of evidence required by the FDA to approve drugs and the quality of evidence needed by the DEA to ban them.” To reschedule a substance, it must be shown that: (1) the substance’s chemistry is known and reproducible; (2) there are adequate safety studies; (3) there are adequate and well-controlled studies providing efficacy; (4) the drug is accepted by qualified experts; and (5) the scientific evidence is widely available. 

Scheduling under the CSA also presents a Catch-22. Drugs like psilocybin are on Schedule I because there is allegedly no accepted medical use for them. But Schedule I status is what prevents researchers from investigating psilocybin’s medical utility to begin with. In 2019, U.S. Representative Alexandria Ocasio-Cortez introduced an amendment to a bill with the goal of making it easier to study psilocybin and other Schedule I substances by eliminating a longstanding prohibition on federal spending for “any activity that promotes the legalization of any drug or other substance in Schedule I.” Yet the House of Representatives rejected the amendment on grounds best captured by Representative Scott Perry’s prohibitionist straw man: “I certainly don’t want my kids taking [drugs] and I don’t want the government promoting [them].” 

Such debates make clear that the scheduling of drugs under the CSA is largely political rather than scientific. This is unsurprising given the historical roots of the War on Drugs. In an interview uncovered in 2016, President Nixon’s top advisor John Erlichman admitted that the War on Drugs was motivated by explicit racism and a desire to quash dissent of militarism and empire. “You want to know what the War on Drugs was really about?,” Erlichman confessed, “we knew we couldn’t make it illegal to be either against the [Vietnam] war or black… But by getting the public to associate the hippies with marijuana and blacks with heroin, and criminalizing both heavily, we could disrupt those communities.” 

Psilocybin’s Therapeutic Potential 

Psilocybin is the main psychoactive compound in over 150 species of psilocybe mushrooms. Like other psychedelics, including ayahuasca and mescaline, psilocybin has been used by Indigenous cultures for centuries for religious and sacramental purposes. Ingesting it can lead to dramatically altered perception, often characterized by a dissolution of the ego, feelings of unity and connectedness with the world or others, transcendence of time and space, and a sense of awe and wonder. A new wave of clinical research finds that, through these psychological experiences, psilocybin can improve mental health. And psilocybin is considered physically safe, despite the potential for so-called “bad trips.” David Nichols, a professor of pharmacology at Purdue University, notes that “although there is a generic public perception that psychedelic drugs are dangerous, from a physiologic standpoint they are in fact one of the safest known classes of CNS drugs,” referring to drugs that primarily affect the central nervous system. 

From the perspective of neuroscience, these mental health benefits relate to changes to the brain’s “default mode network” (DMN). The DMN is an interconnected region of the brain associated with the ego, self-identity, and self-representation. Psilocybin, especially at high doses, can lead to reduced neural activity in the DMN, which may explain the subjective and transcendental experiences perceived  by those who’ve used it. As Rick Doblin, founder of the Multidisciplinary Association for Psychedelic Studies (MAPS), puts it, “psychedelics act by dissolving our filtering systems… You don’t see things from your own individual perspective anymore, but you see a larger perspective and you get more sensory input.”

While not a panacea, if used in the right “set and setting,” psilocybin could provide an alternative or supplement to existing treatments. The U.S. is experiencing a severe mental health crisis made worse by the despair of the COVID-19 pandemic. In 2018, more than 48,000 people died from suicide in the U.S., making it the tenth leading cause of death. Experts estimate that over 51 million American adults—roughly one in every five—suffer from mental illness, yet over half receive no treatment. Of those who do, current psychiatric drugs, most notably SSRIs like Prozac, are ineffective for as many as half of those who use them, and often have unpleasant side effects.

Despite the barriers to researching Schedule I substances, the Food and Drug Administration (FDA) has twice granted “breakthrough therapy designation” to psilocybin research efforts: first in 2018, to the London-based company COMPASS Pathways for its clinical trial of psilocybin therapy for treatment-resistant depression, and then again in 2019 to the nonprofit Usona Institute for its psilocybin program for major depressive disorder. According to the FDA, breakthrough therapy designation applies to a drug that “treats a serious or life-threatening condition and preliminary clinical evidence indicates that the drug may demonstrate substantial improvements over available therapy on a clinically significant endpoint.”

There is clearly some dissonance between the FDA’s approach and that of the Drug Enforcement Agency (DEA), which designates psilocybin as a Schedule I substance. As the U.S. Court of Appeals for the District of Columbia explains, “Schedule I drugs are subject to the most severe controls and… they are deemed to be the most dangerous substances, possessing no redeeming value as medicines.”

Psilocybin and Social Justice 

State laws such as Oregon’s that legalize psilocybin for therapeutic purposes are helpful in sidestepping federal restrictions in a similar vein to how cannabis state laws are developing despite ongoing federal prohibition. There is also a burgeoning psychedelic pharmaceutical industry premised on what many perceive to be the FDA’s inevitable future approval of psychedelic medicine.  Biotech companies and venture capitalists are rushing into the psilocybin market, which they believe to be the successor to the cannabis industry. On the strength of its breakthrough therapy designation, COMPASS Pathways went public in October 2020 with a post-IPO valuation of over $1 billion. Other companies, including Mind Medicine, Numinus, and Cybin, have followed suit. In fact, the psychedelic drug market is expected to reach nearly $7 billion by 2027, growing at around 16% annually.

Yet there are civil rights issues associated with the commodification of traditional shamanic practices, and whether a growing psychedelics industry may amplify social inequalities and systemic racism. In a recent expose on the future of psychedelics and equity, Carolyn Gregoire notes the “rising movement within the psychedelic community… voicing concern that the emerging industry is poised to repeat colonial patterns that have appropriated Indigenous knowledge and led to the destruction of the habitats and communities from which these medicines originate—while also making these new treatments inaccessible to the underserved populations who need them most.” Not unlike concerns confronting the cannabis industry, there is a pressing need for regulations and social equity programs that prioritize equitable access to psychedelic medicines over profit. 

Moreover, people of color have been largely excluded from psychedelic research and policy work. Participants and physicians in psilocybin clinical trials have been overwhelmingly white. This lack of racial diversity may be attributed to minorities’ distrust of medical and judicial institutions, which have long systematically discriminated against them. In particular, the War on Drugs’ disproportionate impact has had an alienating effect on people of color. By comparison, white people can, as Gregoire notes, “often speak freely about consciousness expanding hallucinogenic journeys without fear or consequences or judgment.”

Further, there are religious freedom, cognitive liberty, and neurodiversity concerns about whether psilocybin will be available to those without a discernible mental health condition or who wish to access its benefits outside of designated facilities. “We are concerned about the implications of an elite group of beneficiaries putting a free medicine that grows naturally out of the ground behind a paywall,” said Zave Forster of Decriminalize Nature—Portland in a Facebook post. Will there be adequate funding to ensure accessibility for those who may not be able to afford expensive treatments? What mental health conditions will qualify for a “prescription” to such services, and what will be the criteria for evaluating those conditions?  For those approaching the end of their lives, issues of access are most pressing. Patients rights advocate Kathryn Tucker argues that under state and federal “Right to Try’” statutes, psilocybin ought be available to patients with life threatening illness, to relieve anxiety and depression, notwithstanding its Schedule I designation.

Beyond Psilocybin Reform

Social and economic justice demands expanding illicit drug law reforms beyond psilocybin and other psychedelics. As to psilocybin, Michael Pollan points out that “arrests have been relatively few and generally have not been targeted at people of color.” But, due in large part to the criminalization of other illicit drugs, the U.S. has the highest incarceration rate in the world.  Over 1.5. million Americans a year are arrested for drug-related violations every year, often in connection with racial profiling and over-aggressive policing.  Of those in federal prison for drug related offenses, nearly 80% are either Black or Latinx.  Black Americans make up only about 15% of drug-users in the U.S., but account for around 37% of those arrested for drug offenses. Black defendants will serve on average the same amount of time for federal drug offenses as white defendants for violent crimes.

The perception that the War on Drugs is over is an illusion. The arrest numbers—even for cannabis-related offenses—have not changed markedly in over 25 years.  The Drug War has cost the U.S. over $1 trillion since 1971—more than $3.3 billion annually—and $9.2 million daily. Judged by its purported aims, it has been a resounding failure. More Americans died from drug overdoses in 2017 than in the entire Vietnam War.

Some are also concerned that loosening restrictions on psilocybin alone might leave intact the stigma around other illicit drugs and those who use them. “Psychedelic exceptionalism” is the ideology that psychedelics like psilocybin should be legalized, but other purportedly more harmful drugs, like heroin and cocaine, should remain illegal. According to Carl Hart, a neuropsychopharmacologist and chair of Columbia University’s Department of Psychology, concentrating on decriminalizing or legalizing psychedelic drugs may sustain, rather than diminish, the War on Drugs. As Hart puts it, all drugs “interact on receptors in the brain to produce their effects, and we shouldn’t be treating some drugs as if they’re special while others are somehow evil.” 

Hart is right that we shouldn’t neglect reform of non-psychedelics in drug policy. But rather than feeding into the Drug War, psilocybin reform appears to be creating space for other reform efforts. In Cambridge, MA, for example, reform advocates pushed for a resolution to end criminalization of psilocybin and other psychedelics in February 2021. After the City Council adopted it, it also called on the city’s police force and prosecutor to stop arresting and prosecuting people for possessing any controlled substances. The Council stated: “Drug policy in the United States and the so called ‘War on Drugs’ has historically led to unnecessary penalization, arrest, and incarceration of vulnerable people, particularly people of color and of limited financial means, instead of prioritizing harm-reduction policies that treat drug abuse as an issue of public health.” 

Further, psilocybin is, in many ways, singular in its therapeutic potential and relative safety. According to one study, psilocybin ranks as the least lethal and addictive drug out of 20 studied substances. Other substances, like opioids, have a much higher potential to be lethal and addictive than psilocybin. But that doesn’t mean they should remain criminalized. In contrast to “benefit maximization” regimes like psilocybin assisted-therapy, harm reduction measures such as drug purity testing, safe testing and consumption sites, needle exchanges, access to naloxone, and public service announcements would be appropriate in alleviating the current overdose crisis.  

Policymakers would do well to model future drug policy reforms on Oregon’s two-tiered approach in legalizing psilocybin and, at minimum, decriminalizing all other controlled substances. Oregon’s drug decriminalization act, DATRA, passed at the same time as the Psilocybin Services Initiative, channels revenue from cannabis sales to fund drug treatment centers. In the future, a psilocybin industry might do the same. Moreover, DATRA is expected to lead to a 95 percent decline in racial disparities in drug arrests, and also reduce disparities in other criminal justice measures such as police stops and pretrial detentions. 

Conclusion 

Justice requires ending the War on Drugs. It demands that a system built on violent criminalization, systemic racism, and a warped sense of morality is replaced with one built on science, harm reduction, and, where appropriate, benefit maximization. Allowing people access to psilocybin’s therapeutic potential is a step toward the U.S. making peace with drugs. To paraphrase Aldous Huxley in his famed work about the psychedelic experience, The Doors of Perception, that which comes back through the Door in the Wall will never be quite the same as that which went out. Such a perspective shift is sorely needed given the sordid history of the Drug War.

The Movement to Decriminalize Psilocybin, Explained