The varieties of 'psychedelic decriminalization'
The varieties of 'psychedelic decriminalization'
Policy-makers should ensure voters know what they're voting for.
This is the first in a two-part piece by Joseph Holcomb Adams on the important differences between different types of psychedelic decriminalization policies being voted on across the US. We’re making this piece free access - please support us by subscribing and sharing. In Part Two Joseph argues governments should not decriminalize psychedelics without improving public education about the risks.
Over 50 US states and cities have recently voted on, or are currently considering, different types of psychedelic policy reform. Two states - Oregon and Colorado - have already passed psychedelic policies, in 2020 and 2022 respectively,, and other states including California could soon follow. Many of these policy proposals are presented as moves to “decriminalize psychedelics.”
However, the words “psychedelic decriminalization” on their own tell us very little about what a given policy proposal would actually do, and there are often very significant and consequential differences between particular policies.
Through a large number of conversations over the past couple of years, I’ve found that people (both inside and outside of the psychedelic space) are often very surprised, sometimes even shocked, to learn about the full scope of policy proposals that have been presented as “decriminalizing psychedelics.”
For example, most of the people I spoke with here in the Bay Area were aware that the city of Oakland had “decriminalized mushrooms,” but nearly all were very surprised when they found out that Oakland’s policy allows for people to open up psilocybin mushroom distribution operations, like the one above.
Many people have told me that they changed their positions on particular “psychedelic decriminalization” policy proposals once they found out what these proposals would actually do. So, if someone asks you if you support a particular “psychedelic decriminalization” proposal, your response should probably be “what’s in the proposal?”
To make an informed answer, you would need to ask (at least) these two questions: 1) What type of “decriminalization” would this policy proposal implement? 2) Which specific activities does this policy proposal apply to?
What is “Decriminalization,” and What are the Different Types?
“Decriminalization” in the broad, umbrella-term sense, means changing public policy so that a specific activity is no longer “criminalized,” or treated as a crime, within a particular jurisdiction.
There are three distinct types of decriminalization: de-prioritization of enforcement, reclassification of offense, and legalization.
“De-prioritization of enforcement” means changing policies within a jurisdiction to prevent or inhibit the enforcement of laws imposing criminal penalties for engaging in a specific activity (or activities). With de-prioritization of enforcement, the laws on the books remain unchanged, and the activity remains illegal. However, engaging in the activity is no longer treated as a crime by law enforcement in that jurisdiction, in the sense that law enforcement is directed by the deprioritization policy to refrain from investigating or arresting individuals for engaging in that specific activity (or law enforcement is directed to set this as its lowest priority). Instead of changing the laws on the books to “decriminalize” an activity, de-prioritization policies “decriminalize” the activity by preventing or inhibiting the actual enforcement of laws imposing criminal penalties for engaging in it. De-prioritization of enforcement is the decriminalization strategy that is available to cities and local jurisdictions, because they cannot change state or federal drug laws, but can make changes to local law enforcement practices.
Denver, CO, Oakland, CA, Cambridge, MA, and a number of other cities have passed de-prioritization policies.
“Re-classification of offense” means changing existing laws within a jurisdiction so that while engaging in a specific activity is still illegal, it is no longer a criminal offense, and becomes a violation or infraction instead. Under re-classification policies, individuals can no longer be arrested, charged, prosecuted, or imprisoned for engaging in the specific activity, and instead may face consequences that are more akin to receiving a parking ticket.
Oregon’s Measure 110 decriminalized the personal possession of all controlled substances through a re-classification of offense policy. However, re-classification policies appear to be very rare in the psychedelic policy space in the United States.
The meaning of “legalization” is very simple: “legalization” means making engaging in the specific activity legal within the jurisdiction in question. In other words, legalization is the changing of existing laws so that engaging in a specific activity is no longer a violation of the law in the jurisdiction. When an activity becomes legal, it is no longer treated as a crime or even as an infraction.
California’s Senate Bill 58 is an example of a psychedelic policy proposal that, if passed, would legalize a number of activities involving psychedelic substances. The bill specifically states that “all of the [included activities] shall be lawful for a natural person 21 years of age or older and shall not be a violation of state or local law” (my italics). Regardless of the specific activity or activities being legalized, and whether or not regulation is part of the particular legalization policy, all legalization policies are forms of decriminalization.
It is very common in the contemporary psychedelic space to describe some legalization proposals as “decriminalization” rather than “legalization” efforts. I argue, however, that we should instead use the straightforward, simple, conventional, and literal definition of the concept when we talk about legalization: making something legal. I will return to this argument at the end of this article, but for now let’s turn to the second question that you must ask when examining a particular “psychedelic decriminalization” proposal.
Decriminalization of What?
Most of the time, different policy proposals are described simply as “decriminalizing psilocybin,” “decriminalizing psychedelics,” “decriminalizing entheogenic plants and fungi,” etc. It is, however, impossible to criminalize or decriminalize a substance itself. Substances themselves cannot be criminalized or decriminalized; it is specific activities involving the substances, such as possession, production, transportation, transfer, facilitated use, etc. that can be criminalized or decriminalized.
So, whenever you see a policy being described as “psilocybin decriminalization” or “psychedelic decriminalization” or whatever, you should look for the specifics, and ask “decriminalization of what?” This matters a great deal because there are particularly significant and consequential differences between policies that decriminalize different activities.
The most significant and consequential difference is between decriminalization policies that allow for the emergence of psychedelic economies and those that do not.
This brings us to what I call the “big three” activities in psychedelic policy: possession, production, and transfer.
If a policy applies to possession only, but does not include transfer or production, then this policy does not allow for a psychedelic economy to arise. Decriminalization of possession makes it so that if an individual is caught with the substances, there will be no criminal consequences for that person (or most likely no criminal consequences, in de-prioritization of enforcement situations, and in all situations when possession is still federally illegal). Sometimes decriminalization policies place amount limits on possession, in which case possession of amounts above the specified limits could result in criminal consequences.
If a policy applies to both possession and production, but not transfer, then this policy still does not technically allow for the emergence of a psychedelic economy. Decriminalization of production, paired just with decriminalization of possession, would allow individuals to produce and possess their own substances, but would not allow for individuals to provide the substances to other people. When a “psychedelic decriminalization” policy includes amount limits for possession, these also function as amount limits for production, though some policies include production-specific restrictions such as limits on physical size, location, visibility, etc. of the production operation.
The decriminalization of transfer is the key that opens the door for a psychedelic economy to spring forth. “Transfer” is a broad term that simply means passing something from one person to another, though there are different types of transfer that are allowed by different policies. Virtually all “psychedelic decriminalization” policies I have seen to date do not explicitly decriminalize outright sale of the substances, and most of them include language of some sort asserting that they do not allow for “commercial sales.”
However, most “psychedelic decriminalization” policies do decriminalize transfer in ways that allow for commercial activity (and the emergence of psychedelic economies). I have identified two commonly-included types of decriminalized transfer that allow for commercial activity: transfer through the “gifting/sharing loophole,” and transfer through psychedelic service provision.
Policies that contain the “gifting/sharing loophole” are those that decriminalize some form of “giving away” or “sharing” the substances with other people. While these policies almost always specify that this transfer may only occur “without financial gain” or “without remuneration,” this language is misleading. Although it is true that such restrictions do prohibit the outright sales of the substances (i.e. explicitly exchanging the substance for money), they leave a tremendous amount of room for de-facto sales to occur (although the amount of room can depend on court interpretation and law enforcement discretion). A very common tactic to evade the “without financial gain/remuneration” restrictions and engage in commercial distribution of the substances is by transferring the substances to other people “for free,” while still soliciting and accepting “suggested donations” from those people. Other ways around the “without financial gain/remuneration” restrictions include selling people overpriced T-shirts and other goods while transferring the substances to those people “for free,” charging money to participate in events where the substances are transferred “for free,” and through setting up collectives, “churches,” and other organizations that charge membership dues while allowing members to receive the substances “for free.”
For example, in Oakland, CA, various dispensary and delivery service operations have opened up since the city passed a policy that de-prioritized enforcement of laws imposing criminal penalties for “planting, cultivating, purchasing, transporting, distributing, engaging in practices with, and/or possessing Entheogenic Plants and plant-based compounds that are listed on the Federal Controlled Substances Schedule 1.” Some of these dispensary and delivery service operations put up the pretense of using the “gifting loophole,” but others do openly engage in outright sales. These latter operations have most likely observed that law enforcement in Oakland is not paying any attention to distinctions between outright sales and use of the “gifting loophole,” especially as the psychedelic economy in the city has grown and made it easier to blend in.
Now, we can turn to the second type of transfer that allows for commercial activity: transfer through psychedelic service provision. “Psychedelic service provision” means the provision of facilitated, guided, supported, supervised, and/or assisted psychedelic dosing sessions (including ceremonies) to other people. Some psychedelic decriminalization policies specifically allow for psychedelic service provision, and these policies virtually always allow for providers to charge money for their services (though the substances themselves must be transferred “for free”).
For example, California’s SB-58 would legalize the “facilitated or supported use” of several substances, with this term defined in the bill text as “the supervised or assisted personal use [of the substances] by an individual or group of persons 21 years of age or older, or the assisting or supervising of such persons in such use, within the context of counseling, spiritual guidance, community-based healing, or related services.” SB-58 explicitly states that it would be legal to charge “reasonable fees” for “counseling, spiritual guidance, or related services” that are “provided in conjunction with facilitated or supported use” of the substances “under the guidance and supervision, and on the premises, of the person providing those services.”
How large would the psychedelic economy be under a given policy? This depends on many factors (many more than can be discussed in this article, unfortunately). One area to examine is how the possession- and production-related provisions of a particular policy fit together with its transfer-related provisions. The amount limits (or lack thereof) for possession (and by extension, production) are important factors here. Lower amount limits means a smaller potential psychedelic economy, higher amount limits or no limits at all mean a larger potential economy.
The situation is a bit more complex when the “psychedelic decriminalization” policy includes some form of what I call “flexible” amount limits on possession. Flexible amount limits are those that can change based on interpretation of the policy language, or based on the particular circumstances. Sometimes, amount limits (in weight) are not explicitly specified, and are given ambiguously in terms of “what is necessary” for “personal use” or “sharing with another person” or something like that. In other cases, specific weight-based amount limits are given, but these limits are highly flexible based on context. For example, SB-58 would legalize possession of the “allowable amount” of the substances, which “in the context of facilitated or supported use involving multiple persons,” is “the aggregate of allowable amounts per participant.” According to attorney Omar Figueroa’s analysis of the bill, this entails that “in theory there would be no limit on the aggregate of allowable amounts under state law, meaning that large group events involving large quantities of psychedelics are not out of the question.”
When there are no amount limits on possession, or very high or flexible ones, we can expect to see a relatively larger economy compared to when lower amount limits are in place, in most part because the lack of restrictions on operation size makes opening up an operation a much more economically viable and attractive possibility. With production, the situation is very similar: when amount limits for possession (and operation size restrictions for production) are very high, flexible, or absent, people are able to open larger production operations, which leads to a larger economy. More producers would enter the market if they had the impression that it would be economically viable to do so. When larger production operations are allowed to operate (especially extremely large ones), this leads to a larger supply of the substances in the market.
When extremely large production operations are allowed to operate, this allows for the substances to be produced at an extremely large scale by enormous operations (like warehouses in Oakland); not only does this create a larger supply, it also streamlines distribution networks, which makes it easier for gifting/sharing loophole distributors and service providers to secure a consistent supply for their own operations.
However, in order for higher amount limits or the absence of amount limits for production to translate to a correspondingly large supply of the substances in the market, and a larger psychedelic economy, there must be a way for the substances to be transferred in large amounts from producers to distributors. Typically, the possession amount limits function as the transfer amount limits, and so policies that have no limits or very high limits would allow for massive amounts to be transferred from producers to distributors, as long as this transfer occurs within the constraints of the policy (e.g. through the “gifting/sharing loophole,” or another kind of allowable transfer).
The size of the psychedelic economy that can be expected under a particular policy also depends on the type of decriminalization that the policy would implement. The size of the economy (and the number and diversity of people/groups participating in it, on both the demand side and supply side) increases in proportion to decreasing risks of legal consequences that come from engaging with that economy. The lowest risk of legal consequences certainly comes with legalization policies, and the higher risks come with de-prioritization of enforcement and re-classification of offense policies. You can thus expect to see much more engagement with a much larger psychedelic economy under legalization compared to the other types of decriminalization.
Legalization policies also lead to larger economies because these proposals are pursued at the state (or federal) level, which means that they impact much larger geographic areas and numbers of people compared to policies in local jurisdictions. It is worth noting that de-prioritization of enforcement policies are always implemented at the city or county level, and that most of these local jurisdictions are geographically separated from each other, which means that the jurisdictions typically end up being “decriminalization islands.” As a result, de-prioritization policies, even those that lack amount limits, usually only end up allowing for the emergence of smaller, local markets, because the distribution networks cannot extend beyond the jurisdictions’ borders without crossing into jurisdictions within which the activities are still criminalized
it is important to be clear that throughout this discussion, I have not been factoring in the role of illicit market engagement; we have every reason to believe that massive mushroom-producing warehouses in a de-prioritization of enforcement city would probably supply mushrooms beyond the city limits, for instance. It is always important to anticipate how decriminalization policies would interact with illicit market factors, though there is not enough space for that discussion here. I will return to this topic in the second installment of this two-part series.
Communicating about Different Psychedelic Policy Proposals
Here, I have not discussed policies that legalize state-regulated psychedelic service provision, such as Oregon’s Psilocybin Services Act. These are sometimes described as “psychedelic decriminalization” policies, but usually they are presented as “legalizing a regulated psilocybin therapy program” or something like that. I believe that these policies are presented in this way mostly because advocates want to emphasize the “regulated” aspect of the legalized service provision, framing the policies as creating careful frameworks for safe, fully legal access to psychedelic “therapy” (although the “access to psilocybin therapy” campaign pitch hasn’t panned out in Oregon). Advocates seem to see this type of psychedelic policy model as being particularly palatable and reasonable-seeming to the general public, so they usually use language that describes the model fairly directly and explicitly.
However, when it comes to most of the other psychedelic policy proposals, advocates usually do not use language that directly or explicitly communicates the specifics of what those proposals would actually do (at least when communicating with the general public and the media). Instead, advocates tend to characterize all of these other policy proposals in the same way: simply as “psychedelic decriminalization” policies. Unfortunately, this way of communicating leads people away from being aware of the very significant differences between all of the different “psychedelic decriminalization” policies out there, and fails to inform people about the specifics of each policy proposal.
I believe that in many cases, this is actually an intentional tactic that is (to be frank) meant to promote uninformed public support for policies that would otherwise be more controversial if advocates communicated openly, transparently, thoroughly, and accurately about what these proposals would specifically do. Why do I think that this represents a purposeful strategy? Take a look at the following case study, and perhaps you will share my suspicions about what’s going on.
Senator Scott Wiener, the author of CA SB-58, said this in a Tweet promoting his bill: “Decriminalizing psychedelics is not particularly controversial among people.” He also emphasized in a press interview that “this is not controversial among regular people” (my emphasis).
So let’s return to what’s in SB-58, so that we can speculate about how controversial this proposal might be to “regular people,” if they were aware of the actual scope of that bill. In terms of type of decriminalization, SB-58 is a legalization policy; it would straightforwardly “make lawful” the activities it includes. In terms of included activities, SB-58 would not merely legalize the personal possession substances in question; the bill would go far beyond that. Specifically, SB-58 would legalize the transfer of the substances “within the context of facilitated or supported use.” “Facilitated or supported use” refers to psychedelic service provision, and the language in the bill makes it lawful for providers to charge “reasonable fees” for their services.
Here’s a part of the picture that might seem controversial to some observers: Under SB-58, psychedelic service provision would be legal but entirely unregulated. In other words, SB-58 would make it legal for any adult over the age of 21, without any training/licensing requirements or any other restrictions, to provide (for example) psilocybin-assisted “counseling” sessions, in their basement, to any other adults over the age of 21, and legally charge hundreds of dollars an hour for their “services.”
Furthermore, recall how Omar Figueroa noted that “large group events involving large quantities of psychedelics are not out of the question” under the bill, due to its flexible amount limits for possession? One of the implications here is that SB-58 would legalize an unregulated psychedelic festival/party industry, where attendees could legally be provided with the substances “for free” with the purchase of a ticket.
If you ask me, I think all of the above features of SB-58 would certainly seem controversial to “regular people,” or at least much, much more controversial than a decriminalization policy that applied only to possession for personal use. “Decriminalization of psychedelics” certainly sounds less controversial than “legalization of unregulated psychedelic service provision.”
It is also much vaguer, far less explicit, far less descriptive language for characterizing what SB-58 would do.
I argue that psychedelic policy advocates have the moral responsibility to describe particular policy proposals as explicitly, directly, openly, transparently, thoroughly, and accurately as possible.
I consider this to be an “informed consent” issue; in order to give consent to supporting a particular psychedelic policy proposal, a person must be informed about what they are signing up for. If advocates are asking you to get on board with a psychedelic policy proposal, they have the obligation to make good-faith efforts to help you become sufficiently educated about what the proposal would do. If advocates do not make these good-faith efforts, and especially if they intentionally try to keep you uniformed or even misinformed, then they end up instrumentalizing you, using you as a means to their policy ends. This is not an ethical way to relate to other people; we are morally obligated to respect other human beings as autonomous agents, to treat each other as subjects rather than as objects or tools.
Why do advocates sometimes use this tactic, communicating about “psychedelic decriminalization” proposals in ways that do not provide the general public with the information they need to make their own decisions and form their own views about the policy proposals? It seems to me that often, the tactic is used because advocates believe deeply in the urgency, importance, and benevolence of their mission, and subscribe to some form of the notion that “the end justifies the means” when it comes to achieving this mission. I can also understand how some psychedelic policy advocates, especially those with particularly radical, socially-transformative visions, would view the need to fully inform and convince “regular people” as an impediment to achieving the mission. “Regular people” might be influenced by decades of cultural stigma against psychedelics, they might be overly attached to the status quo, and they might be easily frightened by policy proposals that could bring any degree of psychedelic chaos into society. And what do “regular people” know about what’s good for them, for society, for the planet, or for the evolution of human consciousness, compared to the enlightened insiders of the psychedelic movement?
This way of thinking is plainly elitist, and it leads to acting and communicating in ways that do not respect the rights of other people. In a democratic society, everyone has the right to have a say in how we turn the ship. We are all on this ship together, and we all go where it takes us. If bringing psychedelics into contemporary society really does represent a major, historical turn of the ship, as many in the psychedelic movement (especially some very enthusiastic policy advocates) believe, then doesn’t this imply that this particular turn would be uniquely consequential for everyone who is on the ship, and for future generations? If so, then wouldn’t there be even more of a moral imperative to respect everyone’s right to have a say in how this all goes down? I mean, if we’re talking about the future of the evolution of human consciousness, it seems like this is something that belongs to everyone, not just the enlightened insiders of the psychedelic movement.
Conclusion
In this piece, I have not argued in favor or against any particular psychedelic policy positions. However, I imagine that some readers might have detected some of my biases, and may have at some point thought to themselves, “even if he’s not directly saying it, this guy thinks that opening an unregulated psychedelic economy is a crazy idea.”
These readers would not be wrong; I do indeed think that it would be a bad idea to open an unregulated psychedelic economy, or at least that it would be dangerous and irresponsible to do so without also (or preferably first) implementing a robust public education campaign.
In the second installment of this two-part series, I will explain and argue for this position. (You can read Part Two here).
Introducing the “Psychedelic Decriminalization” Policy Table:
This table is meant to serve as a useful tool for examining and comparing different “psychedelic decriminalization” policies and policy proposals. It does not include psychedelic policies/policy proposals that lack a “decriminalization” element (e.g. those that only set up a working group or research committee).
The three columns categorize items based on the “what type of decriminalization?” question, and the nine rows categorize items based on the “decriminalization of what?” question.
“Regulated program for service provision” is in there as one single row that encompasses all elements of that model (possession, production, transfer). All other rows apply to activities that are allowed outside of a regulated framework.
As of right now, I have only entered a fraction of all of the “psychedelic decriminalization” policies/policy proposals that are out there, though I hope to complete and continuously update the table in the future.
Policies that have been approved are entered into the table in normal text, and policy proposals that are still under consideration are entered in red.
When a policy is entered with a (?), this means that this is a potential interpretation of ambiguous language in the legislation text.
City-level policies/policy proposals currently listed:
Berkeley, California Resolution (recommendation text starts on page 151, resolution text on page 165)
Cambridge, Massachusetts Policy Order
Oakland, California Resolution
San Francisco, California Resolution
State-level policies/policy proposals currently listed:
Colorado Natural Medicine Health Act *
Oregon Psilocybin Services Act
*The entry here is for the ballot measure (Proposition 122) that was passed in November 2022, and the information will be updated to reflect changes made by Senate Bill 290, if that further legislation passes (which is expected to happen soon). One of the more consequential changes that this bill would make is adding physical size restrictions on production.
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