The decriminalization and legalization of marijuana by states has become relatively commonplace by 2020. Despite federal restrictions, thirty-three states to date have legalized marijuana for medical and/or adult use and currently five states (Arizona, Mississippi, Montana, New Jersey, and South Dakota) are slated to have ballot measures and referendums on Election Day 2020 that would either initiate the process to legalize marijuana or expand access. Marijuana legalization continues to increase in popularity, with a 2019 Pew Research Center survey finding that 67 percent of Americans think that marijuana use should be legal. There has been movement at the federal level as well; later this year, the House of Representatives could potentially vote on the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act), which would remove marijuana from the Controlled Substances Act and establish a process to expunge convictions for federal cannabis offenses.
The success of marijuana decriminalization and legalization efforts in the United States has provided something of a blueprint for proponents of other drugs that are currently regulated similarly in United States. Psilocybin mushrooms, more commonly referred to as magic mushrooms, appear poised to be the next such substance to make inroads, with ballot measures before voters this Election Day in the District of Columbia and Oregon after successful efforts in Denver, Oakland, Santa Cruz, and Ann Arbor. Voters in the District of Columbia will decide whether to decriminalize magic mushrooms with Initiative Measure No. 81. Voters in Oregon will be asked to weigh in on two ballot measures that impact magic mushrooms: Oregon Measure 110 is an initiative that would decriminalize most scheduled drugs, including magic mushrooms; and, Oregon Measure 109 would allow for the creation of a program for the use of magic mushrooms under the supervision of a licensed psilocybin service facilitator. At the federal level, both marijuana and psilocybin mushrooms are classified as Schedule I drugs under the Controlled Substances Act, meaning that they are determined to have no currently accepted medical use and a high potential for abuse and are illegal to possess, produce, or distribute for consumption.
These measures reflect that advocates for magic mushrooms are following some of the same lessons learned from the proliferation of state marijuana legalization efforts in the last decade.
The success of marijuana decriminalization and legalization efforts in the United States has provided something of a blueprint for proponents of other drugs that are currently regulated similarly in United States.
- Decriminalization as a first step
Marijuana legalization did not happen overnight in those states where it now exists; it was a long process that moved forward in incremental steps. Before California legalized medical marijuana, there was a wave of cities and states that decriminalized marijuana in the decade following its classification as a Schedule I drug in 1970. Oregon was the first to do so in 1973 and was followed by Alaska, Maine, Colorado, California, Ohio, Minnesota, Mississippi, New York, North Carolina, and Nebraska. Decriminalization did not legalize marijuana in any capacity, but it changed the penalties for those found guilty of possession of small amounts for personal use. Rather than an arrest with the potential of facing jail time and a criminal record, violators would face a fine.
While many of these early decriminalization laws and policies would eventually be rescinded during the 1980s “war on drugs,” they were important first steps in the overall marijuana legalization effort. Groups that were in favor of the liberalization of marijuana laws were able to organize around some of these initial decriminalization movements and were then prepared to work toward subsequent legalization efforts. Decriminalization in cities like Denver, Chicago, Detroit, and Grand Rapids, Michigan were all precursors to the eventual state-wide legalization of adult-use or recreational marijuana. Decriminalization is also a potential incremental step forward when public opinion has not quite settled on the issue of legality; public opinion on marijuana legalization took time to evolve, with support for legalization increasing 33 percentage points from 2009-2019.
Ann Arbor, Denver, Oakland, and Santa Cruz all decriminalized magic mushrooms (and in the case of Ann Arbor, Oakland and Santa Cruz, all entheogenic plants in general) in 2019 and 2020, making the local possession of the drug in an amount for personal consumption (as dictated by law) by people aged 21 or older the lowest-priority crime for law enforcement. City law enforcement was prohibited from spending resources on criminal enforcement, effectively eliminating arrests and prosecutions. It is important to note that such city laws and policies have no impact on the legality of magic mushrooms in the rest of a state and do not create a commercial market for the psychedelic; psilocybin mushrooms cannot be purchased in marijuana dispensaries. The initiative that voters in the District of Columbia will consider this fall is modeled similarly to the policies in these cities, while Oregon Measure 110 would decriminalize all personal use of controlled substances (not just magic mushrooms) and additionally would establish a drug addiction treatment and recovery program for violators to attend rather than pay a fine.
- Conduct research and tout the drug’s medical benefits
The initial push for marijuana legalization in states was limited to medical usage, treating medical conditions such as chronic pain, anxiety, post-traumatic stress disorder (PTSD) and seizures. California was the first state to legalize medical marijuana in 1996 with the Compassionate Care Act and twelve additional states would legalize medical marijuana before Colorado became the first state to legalize marijuana for adult use in 2014. States that permit adult use are still in the minority—only eleven of the thirty-three states that have legalized marijuana for medical use have legalized adult use as well. For many—voters and politicians alike—the idea of marijuana being legalized to assist those that are sick and suffering appears to be more palatable than a general legalization effort—at least initially.
Supporters of magic mushroom legalization have similarly touted the medical benefits that psilocybin can provide for those that suffer with depression and anxiety. These claims have been bolstered by studies published in Journal of Psychopharmacology, Neuropharmacology, Proceedings of the National Academy of Sciences, The Lancet Psychiatry, and Psychopharmacology. The US Food and Drug Association (FDA) has also granted two studies of the effects of psilocybin “breakthrough therapy” status, which helps to expedite the process for the development and review of drugs that are intended to treat a serious condition and have shown promise in preliminary clinical trials.
Oregon Measure 109, one of three magic mushroom-related measures which will be before voters in November of 2020, makes the most explicit connection to the therapeutic use of magic mushrooms; if passed, it would give the Oregon Health Authority a two year period to develop a program for administering psilocybin products to those over 21 through entities licensed by the state. The potential therapeutic and medical benefits of psilocybin were also referenced in Denver’s Initiated Ordinance 301, Oakland City Council Resolution 87731, Ann Arbor’s resolution, and in the proposed District of Columbia Initiative Measure No. 81.
The Schedule I status of marijuana and magic mushrooms does mean that there is a limit to the research that can be done on both drugs. Since the possession, production, and distribution of these drugs for consumption is considered illegal at the federal level, there are hurdles associated with funding, supply, and approvals that can slow down and restrict the research that can be done resulting in it being inherently harder for Schedule I drugs to prove that they may have accepted medical use.
The Schedule I status of marijuana and magic mushrooms does mean that there is a limit to the research that can be done on both drugs.
- All politics is local
While the legalization of marijuana is often framed as the tension between state and federal law, cities and local governments play a critical role in the legalization and implementation efforts, often serving as a model for subsequent state-wide programs or conversely impacting the success of state initiatives. In all of the states where a commercial market for adult use marijuana is legalized, counties can decide to “opt-out” and prohibit the growing, sale, or processing of marijuana within their boundaries, directly impacting the market and availability of marijuana to state residents. In states where marijuana has not yet been legalized, large cities like Philadelphia, Milwaukee, and Atlanta have chosen to decriminalize marijuana in an effort to address issues of social justice and equity. In states where marijuana has been legalized for adult use, cities like San Francisco, Denver, and Seattle have likewise led the way with policies to expunge or vacate previous low-level, non-violent marijuana convictions.
By starting with local initiatives in cities, those in favor of liberalizing restrictions on magic mushrooms are following a similar “bubble-up” model. Early success in cities can potentially lead to success at the state level; just as states are often seen as “laboratories of democracy” for federal action, cities can also help model what is effective policies for their respective states. After the decriminalization in Santa Cruz and Oakland, there was momentum for a state-wide decriminalization ballot measure in California. That effort ultimately did not make it on the ballot in 2020—COVID-19 may have contributed to difficulty in obtaining signatory requirements—but it shows that efforts to “scale up” are already underway.
The Future of Magic Mushrooms
One thing that may slow down the progress of changing policy related to magic mushrooms is that their use is not nearly as widespread as marijuana. Psilocybin use in the United States is so small that it is usually measured in the broad category of hallucinogens, which in addition to psilocybin mushrooms includes: LSD, PCP, peyote, mescaline, ketamine, and MDMA. The 2018 National Survey on Drug Use and Health, the most recent survey data available, found that approximately 2 percent of Americans 12 or over reported the use of hallucinogens in the last year. By comparison, the 1996 National Household Survey on Drug Abuse (as the National Survey on Drug Use and Health was previously known), conducted around the time California legalized medical marijuana, found that 12.4% of respondents reported marijuana use in the last year. While people don’t necessarily have to personally use a drug to support easing restrictions on it, especially for medical use, it could impact the lobbying and advocacy that is done or how it resonates with voters.
Marijuana legalization may have not only provided a blueprint for how advocates for the legalization of other controlled substances like magic mushrooms can make progress, but it may have helped alleviate the stigma of even contemplating relaxing drug laws. Following the relative success of marijuana legalization, people are potentially much more open to the idea of descheduling or legalizing other Schedule I drugs. While it still may take time before magic mushrooms enjoy anything close to the acceptance of marijuana, it will likely benefit from following in its footsteps.