Decriminalization and Legalization of Psychedelics: What’s the Difference?

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Psychedelics like Lysergic acid diethylamide (LSD or “acid”), 4-Methylenedioxy-methamphetamine (MDMA), and psilocybin (magic mushrooms) have been illegal under state and federal laws for decades.

These substances have been stigmatized for years due to widespread misinformation and misconceptions, like the common (but false) assumption that psychedelics cause permanent brain damage. 

In recent years, there has been rising interest in psychedelics among both the general public and the scientific community as continued research demonstrates their potential therapeutic benefits and relative safety when used in a controlled setting. Though psychedelics (except for ketamine) are currently Schedule I drugs with serious legal consequences for obtaining, possessing, or using them outside of a clinical study, advocates are hopeful that laws will change in the near future. 

Controlled substances demonstrating potential benefits to society that warrant a change in legal status may be decriminalized or legalized with different regulations for use. While the two sound similar, there are important differences between them. 

Here, we will discuss the current legal status and potential future of psychedelics in the United States, as well as the commonalities and differences between decriminalization and legalization measures.

 

Why are psychedelics illegal in the United States? 

Most psychedelics (except ketamine) are currently Schedule I drugs, which means they are substances the DEA deems are illegal to produce, possess, or use unless an exemption applies. In many jurisdictions, even the possession of paraphernalia associated with psychedelic intake is also punishable by law.

American politics began seeking mechanisms of control over the counterculture movement of the 1960s and 70s with legislation like the Controlled Substances Act, signed by President Richard Nixon in 1970 as a major kickoff to the War on Drugs. John Ehrlichman, the administration’s former Domestic Policy Chief, later revealed that the legislation enacted for the War on Drugs was largely motivated by Nixon’s own racism and a desire to criminalize the behaviors of certain voters who would oppose him during his reelection campaign. 

Nixon made many unfounded claims that the use of certain substances was the main source of societal dysfunction, which led to widespread fear and opposition of psychedelics that still exists today. The politically motivated laws created during the War on Drugs had a lasting impact on United States drug policy, including the continued illegality of most psychedelic substances despite their therapeutic potential. 

Ketamine is an exception; it has long been  FDA-approved for anesthesia and is used off-label to treat depression in a clinical setting. Recently, the FDA approved Esketamine nasal spray to treat depression specifically. Additionally, in 2020 the state of Oregon voted to decriminalize psilocybin and legalize its therapeutic use, with other states including Florida, Connecticut, Hawaii, and New Jersey on track to vote on similar legislation in the near future. Advocates for psychedelics are hopeful that these breakthroughs would change misguided drug policies.

 

Decriminalization Versus Legalization 

It’s easy to see why people commonly use the terms ‘decriminalization’ and ‘legalization’ interchangeably; both imply reduced restrictions and legal ramifications. The two words actually have different meanings and implications for drug laws that are important to note. 

Decriminalization is often a far cry from permission to use controlled substances however you please. Instead, the purposes include harm reduction efforts, substance use disorder outreach, and social justice initiatives like eliminating racial inequities in drug sentencing. Decriminalization frequently involves the removal of certain severe penalties for drug possession, as long as there is no indication of intent to sell or distribute (actions that are not protected by these laws). While previous policies may have required jail time for possession of controlled substances in small quantities, decriminalization indicates more practical consequences like fines and community service requirements. Some of the recent decriminalization initiatives have not changed the criminal penalties at all, but rather only made enforcement of certain conduct with respect to certain psychedelics a low priority in the particular jurisdiction. In these jurisdictions, an individual can still be prosecuted. 

Legalization is the removal of penalties related to a substance like fines, jail time, or other legal consequences. When a controlled substance is legalized, however, there are still restrictions about what is legal and what is not. There are limits to how much of a controlled substance you can possess, where you can bring or use it, and how it can be bought or sold. Sometimes, a substance is only legal to possess in small quantities but remains illegal to manufacture, sell, or purchase. It is common for legalized substances such as cannabis to be banned for use or possession in public or municipal locations such as parks and schools. If you have questions about the legality of a substance, check local, state laws (policies can vary greatly in different jurisdictions), and federal laws.

 

Some benefits of decriminalization and legalization include: 

  • A likely decline in drug overdose fatalities
  • Confrontation of widespread racial and socioeconomic bias in the criminal justice system
  • Reallocation of incarceration costs to health and community resources
  • Increased awareness of and more compassionate, holistic treatment for those who struggle with substance use disorders
  • The potential restructuring of law enforcement policies and roles
  • Reduced family separations and deportations for minor drug charges
  • Harm reduction through education and services like substance testing

 

What are the benefits of decriminalization and legalization?

Though decriminalization and legalization are different, both have positive impacts. 

For instance, mandatory jail time for drug offenses is extremely costly to taxpayers and does very little to prevent illicit drug activity. Funds spent on keeping drug offenders incarcerated could instead be used for education, harm reduction initiatives, accessible mental health services, community resources, and substance use recovery programs. In 2014, California enacted such policy changes through Proposition 47 and demonstrated a sharp decline in the jail population, with great benefits to local communities. 

 

Will psychedelics become decriminalized or legal in the future? 

Laws that prohibit the production, sale, and use of certain substances have been known to change when there is a cultural shift in mentality. 

For example, the Prohibition Era in the United States began in 1919 with a total ban on alcoholic beverages and caused a subsequent surge in gang violence, unregulated underground production of alcohol, and negative impacts on society. As a result, Prohibition lost public support and was repealed in 1933 with the ratification of the 21st Amendment. 

Similarly, cannabis was designated as a Schedule I drug by the federal government in 1971. However, California became the first state to legalize cannabis use for medicinal purposes in 1996, with other states taking the same initiative in the years that followed. Voters in Colorado first made recreational use legal in a 2012 election, which demonstrated positive societal effects and paved the way for many more states to follow suit. 

There are notable present-day breakthroughs: the FDA approval of ketamine for use in mental health therapies involving treatment-resistant depression has opened doors for additional research efforts and helped dismantle its stigma as a party drug of abuse, and FDA designation of MDMA and psilocybin as break-through therapies. In 2020, voters in Oregon decriminalized psilocybin and legalized its use to aid certain types of therapy. 

With growing evidence for the therapeutic benefits of psychedelics, it is possible that some of these substances could be available in a clinical setting for treating specific conditions within the next few years. Decriminalization and legalization for personal, non-therapeutic use may take longer, but there is growing support for the idea as research continues to validate the safety and benefits of psychedelics.

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