The psychedelic reform movement may share many overarching intentions, but the means of achieving them are often up for dispute. Case in point: last summer, when MAPS held its massive Psychedelic Science conference in Denver, Colorado. While the overall tone of the conference was fairly upbeat, there were a few points of contention bubbling beneath the surface. The question of Indigenous involvement in the movement and respect for their medicines, for example, resulted in an unexpected protest during the closing ceremony. Intersectional to that debate was the issue of decriminalization versus legalization. It seemed like everyone was talking about it over the course of the week.
The legalization camp largely asserted that substantial regulation would create a host of commercial, clinical, and cautionary benefits that would ensure consumer protection. They argued this type of structured legislation is necessary for the success of psychedelic businesses and clinics because it will integrate these substances into society in a manner that grants the movement the legitimacy required to achieve mainstream acceptance.
On the other side of the issue, people argued for less regulation and a more hands-off approach on the part of the state, citing practical and personal reasons. Some pointed to Oregon as an example of a nightmare regulatory rollout destined to repeat itself, saying that the state’s self-imposed bureaucracy hindered psychedelic access and made it unaffordable to most people—except the wealthy. Indigenous activists also expressed their disapproval of potential state intervention in traditional practices enabling cultural erasure. Others admitted to a skepticism toward psychedelics losing their long-held fringe appeal.
One woodsy-looking therapist in attendance mused, “Sure, we need regulations to establish a proper psychedelic medical space, but at the same time, doesn’t it feel weird to make a bunch of rules around something that teaches you that rules aren’t real in the first place?”
Now, nearly a year later, with reform programs established in Oregon and Colorado, and new efforts building steam along the East Coast and across the US, the debate rages on between the spectrum of psychedelic advocates about whether decriminalization or legalization is best for the future of the psychedelic movement.
In the case of Oregon, a pair of ballot initiatives passed in 2020 that impacted drug regulation in two ways: One measure created a highly regulated psilocybin-assisted therapy model, and the other decriminalized all drugs, including psychedelics. The result has drawn widespread criticism.
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“Measures 109 and 110 passed at the same time,” explains Geoffrey Lawrence, the director of drug policy at the Reason Foundation, a public policy organization and think tank that publishes research and a magazine. “Measure 109 established a highly regulated market for psilocybin services—too regulated, I would say.”
Lawrence explains that the combination of these two measures created more of a mess rather than a framework for safe access and reducing harm. “Consumers cannot take psilocybin home with them, and [they] must pay for clinical administration each time. Due to licensing, training, zoning, and other costs with which practitioners must comply, a single session can cost $3,000 or more. That’s not practical for many individuals or for [some] applications, like microdosing. At the same time, Measure 110 decriminalized personal possession of most drugs. That has allowed an emboldened street market to emerge, but production and sales of these goods are still illegal.”
READ: Biden Administration Prepares for Legalization of MDMA and Psilocybin Within Two Years
Colorado, on the other hand, leaned more toward decriminalization alongside a hefty dose of regulation within the same ballot initiative. While Proposition 122 allows for the cultivation, consumption, and gifting of naturally-occurring psychedelics, such as psilocybin, ibogaine, mescaline from non-endangered cacti, and plant-based DMT—fairly broad decrim by most metrics (although lab-made compounds, like LSD, remain illegal)—the state also established a Natural Medicine Advisory Board to oversee the role out of the psychedelic therapy industry. This unelected board has already been accused of toadying to wealthy lobbying interests.
Some activists are critical of the lack of Indigenous partnership and meaningful consultation in crafting and rolling out these legalization programs. “Even with [our] legal recognition [to consume Peyote], the path to honoring Indigenous practices has been really fraught,” says Sutton King, co-founder of New York’s Urban Indigenous Collective and a descendent of the Menominee and Oneida Nations of Wisconsin. “We’re already seeing the perpetuation of colonial dynamics of erasure and exploitation through the current legalization frameworks because Indigenous people are regularly marginalized in discussions around psychedelic regulation and commercialization—we’re getting sidelined.”
In California, the current psychedelic legislation up for approval is Senate Bill 1012 crafted by State Senator Scott Wiener, which aims only to legalize psychedelic therapy. It would lay the groundwork for a therapy facilitator system and allow adults 21 and older to use certain psychedelic substances in a therapeutic context, in a safe and controlled environment, and under the supervision of a licensed and trained facilitator. (All of this is similar to Oregon and Colorado). SB 1012 does not allow for the sale, personal possession, or use of psychedelics outside of a regulated therapeutic context. In other words, there is no decriminalization component to this bill.
David Bronner, grandson of the founder of Dr. Bronner’s soap, is among the proponents of SB 1012. In a separate interview not intended for this story, we asked him why the proposed legislation lacks decriminalization, noting that it makes it difficult to want to support a psychedelic bill that doesn’t benefit the majority of the public. He explained that SB 58, the proposed Senate Bill that made it to Governor Newsom’s desk in 2023, was ultimately vetoed because the bill would decriminalize possession prior to the implementation of dosing and treatment guidelines. SB 1012 is thus a response to Governor Newsom’s veto and addresses his directives, according to Bronner. Should the governor sign off on this new legislation, Bronner says the plan is to put forth a follow-up decriminalization bill that would, in fact, benefit all Californians.
Even still, the Reason Foundation envisions a different regulatory approach. Lawrence argues that these models don’t necessarily keep people from getting sucked into the prison system, nor do they create a safe supply or hinder cartel supply chains.
California’s proposed bill “fails to address many reasons the drug war is so harmful,” he says. “First, if participants in these markets have no recourse to the legal system to resolve disputes, they may resort to physical violence to enforce their claims. We’ve seen this over decades from organized crime and drug cartels. States that have removed criminal penalties for simple possession have made no comparable changes to the supply chain for psychedelic goods. Organizations that produce these goods are still criminal and have no access to the legal system.”
Lawrence also contends that this type of regulation and most state-level decriminalization frameworks impede psychedelic commerce. He believes that establishing a framework similar to the legal cannabis format is essential because it would create a legal supply chain of manufacturers and sellers, and instantly create broader access.
“Market efficiency is impeded when producers cannot operate in the open,” he says. “Products become more expensive to the consumer because producers cannot operate at scale, negotiate distribution contracts, or deposit the proceeds of sales in a bank. Illegality forces the supply chain to be inefficient.”
This type of regulatory structure is unprecedented for psychedelics, however, and Lawrence believes not adopting this model will have a direct impact on product safety. It already has. California, for instance, and across the country, for example, bodegas, liquor stores, smoke shops, unregulated dispensaries, gas stations, and venues of the like, sell “mushroom” products that are designed to look like they contain psilocybin. Labels on the packaging say a range of things, including “mushroom blend,” “Amanita muscaria,” or “trippy blend.” Lab testing results conducted by Hyphae Labs for this publication revealed that many of the products didn’t contain psilocybin, but instead tested positive for the presence of a compound called 4-AcO-DMT. (This story will be available in Issue No. 11. You can become a member here to get the story first.)
“Consumers can have no confidence in what they are buying without a commercial market,” Lawrence says. “What a street seller tells you is acid might just as easily be cyanide. There is no clear chain of custody in the illicit market, so what you buy from a street seller may not be traceable to the ultimate producer, and no one can be held accountable for tainted products, as a licensed seller might be held to account in a legal market. We see this phenomenon more and more with drugs marketed as opioids or cocaine that are really just fentanyl. Consumers want to buy safe, regulated products but they can’t do that in a decriminalization environment.”
But people don’t have access to regulated psychedelic products, even in regions where reform measures have passed. The solution? Lawrence says flexible regulation that creates broad access. “If there’s one thing states can learn from Oregon’s approach, it’s that regulations need to remain flexible enough to allow psychedelic services to be offered at a price most people can afford.
There are many advocate groups who are skeptical of legalization, such as the Bay Staters, Parents for Plant Medicine, and the New England Veterans for Plant Medicine—a Massachusetts-based reform coalition that expresses stark misgivings toward state regulation, particularly in light of how legalization is playing out in Oregon and Colorado.
“Our coalition opposes creating a model based on Oregon,” says James Davis, Bay Staters executive director and co-founder. “It is still highly illegal to possess and grow psychedelics outside of regulated use in Oregon, and Measure 109 did nothing to change that.”
In a position paper explaining their vision for the future of a regulated psychedelic landscape, the Bay Staters laid out three points where Oregon’s and Colorado’s models fell short. First, the imposition of unelected advisory boards and special interest lobbies resulted in a lack of democratic accountability, as policies are now established by appointed officials and not voters. Second, regulatory burdens fueled high clinical costs, making psychedelics unaffordable to most people. And, finally, state regulation inspired backlash on local levels, with seven in 10 Oregon counties voting to ban psilocybin service centers, essentially upholding prohibition throughout the state.
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According to Noah Heller of the psychedelic activist group Psilocybin Oregon, the program has been a blatant failure for a few reasons, largely due to the influence of New Approach PAC. Heller once supported Measure 109, but now he, like many others in Oregon, believes this political action committee doesn’t have the people’s best interest.
“My basic problem with the New Approach model is that it is simply far too expensive for most folks,” says Heller. “The decriminalize first, lighty regulate model that Bay Staters is pushing is vastly superior.” Heller and others argue that this approach provides more freedom of choice to psychedelic users.
Jamie Morey, co-founder of Parents for Plant Medicine, a grassroots organization that works to destigmatize psilocybin use among parents and caregivers, is critical of the New Approach PAC model because it aims to set up a system that’s proven problematic in other states.
“The creation of this elaborate commission made up of unelected appointees [allegedly] receiving six-figure salaries, funded by sky-high licensing fees, is going to make the therapeutic use of psilocybin accessible to only the wealthiest citizens,” Morey says. “The underlying implication of all this regulation is the age-old lie of the drug war, which is that psilocybin is inherently bad and so dangerous that we need our government to control it and protect us from it, which, as we all know, couldn’t be further from the truth. It’s laughable and infuriating to read through 27 pages of the PAC’s ballot initiative plans to highly regulate this extremely safe, naturally occurring substance, which heals people from a long list of mental and physical conditions and kills zero people annually.”
While the Indigenous community in the US has previously taken issue with the decriminalization model, particularly regarding Peyote and mescaline, Sutton King says “bottom-up decrim” is preferable to the commercialization associated with legalization. “I think decriminalization is the smartest path forward, with the caveat of honoring what the Native American Church wants because of the criminalization that they had to go through just to sit with Peyote. If Indigenous people are saying to leave certain plants alone, we should leave that plant alone. Outside of that, I think decrm is a way for people to be able to access plant medicine in a less-appropriative way.”
READ: Religious Access to Psychedelics is No Substitute for Decriminalization
The concept behind a ground-up decrim model keeps autonomy and psychedelic health decisions in the hands of people rather than regulators. The Massachusetts coalition began moving on this model by passing measures that end arrests for growing and sharing psilocybin in eight cities across the state. Now, on a state level, they’re pushing for a bill that will lower entry fees and barriers for facilitators (as opposed to the strict barriers of entry established by states following New Approach PAC’s model) and for all regulations to be set by the Department of Public Health rather than unelected supervisory boards.
The big picture here suggests that neither framework for decriminalization or legalization is perfect. Each format, as it currently exists, presents valid issues. Plus, neither of which is designed for genuine reconciliation with Indigenous people and their medicines.
“The Western narrative dominates in psychedelics, and the Indigenous ways of knowing are devalued,” says Sutton King.”Imposing regulatory structures without adequate consideration for these practices will inadvertently undermine Indigenous sovereignty and autonomy. It’s fine if you want to use a psychedelic in a clinical setting, but that’s not how everyone should be forced to do it.”
Similarly, Jade Mycelia, a co-founder of the Minnesota advocacy group Big Psych, points out that not everyone who wishes to work with psychedelic plants or fungi wants or needs to do so in a sterilized therapy setting.
“We value the ability for people to choose their own path,” Mycelia says. “We advocate for diversity of thought in the psychedelic space because there is no one way to experience psychedelics. You can follow your own path and develop your own techniques outside of the mainstream or traditional [healing modalities]. Being mindful of your needs and developing a practice that reflects your unique experience, while having the resources to support individual autonomy is important to us.”
Big Psych believes in an approach that balances decriminalization with regulation. Recently, the city of Minneapolis passed a deprioritization resolution that makes earth-grown psychedelics the lowest priority for law enforcement. This means that local law enforcement is not allowed to use its resources to target or go out of its way to arrest people for possessing, using, or generally engaging with natural psychedelics. There are limitations to deprioritization, however. One is that if you leave the city and you’re caught with psychedelics, you will still get in trouble. Even if you’re within the bounds of the city, say you get pulled over and suddenly you’re car gets searched, and the cops find mushrooms—you’re getting arrested. Despite the limitations, deprioritization is still a step in the right direction.
“We advocate for both statewide decriminalization and a state-regulated medical program,” says Mycelia. “We understand that some folks are more comfortable within a medicalized structure, while others are not. Having a choice and not criminalizing or uplifting one framework over another is key.”
So where does that leave us? In limbo a bit. In spite of that, one thing is clear: while there is fierce debate over some of the finer points of these matters, most advocates seem to appreciate the need for some balance between decriminalization and legalization.
Perhaps Jean Lacy of the Illinois Psychedelic Society summed it up most succinctly: “These two concepts need not be at odds. Decriminalization and regulations should go hand in hand.”
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