Does the Failure of Prohibition Mean that We Succeed?

As a litigator, my training is to anticipate my opponent’s argument. So when I was advising the Denver mushroom decriminalization campaign in 2018, much of the discussion  was about preparing for prohibitionist resistance.

It was, therefore, a great surprise that no organized opposition emerged, not even an appearance by the Colorado state police, a prosecutors’ association, drug prevention professionals, or parent groups warning of the danger to youth that the mere existence of the initiative posed.

Indeed, the absence, over the last almost two years of media reporting, of prohibitionist opposition to the national psychedelic decriminalization movement similar to the anti-cannabis movement has been a mystery.

The opposition has at last emerged and it has been wondrous: in its very opening moment it conceded that local governments have the authority to decriminalize a psychedelic when it has a medical use. Further, it set a standard for showing medical use that is far less than what the DEA requires in order to let a substance out of Schedule I.

Smoking Out the Opposition: U.S. Representative Andy Harris

This past July, Decriminalize Nature DC broke through the wall of silence and elicited the first prohibitionist response in the person of Maryland Representative Andy Harris. Representative Harris is well-known to the cannabis movement for his work in preventing full legalization of cannabis in D.C. in 2014 through the use of a rider to an appropriations bill preventing the city from spending any funds to implement the legalization initiative passed by the voters.

On July 6, DNDC announced that it had gathered 35,000 signatures in support of Initiative 81, more than the 26,000 necessary to qualify Initiative 81 for the ballot in November.  Initiative 81 is actually a very modest measure that does no more than make enforcement of laws against “entheogenic plants and fungus,” defined as “any plant or fungus of any species in which there is naturally occurring any of the following substances in any form …ibogaine, dimethyltryptamine, mescaline, psilocybin or psilocyn,” the lowest-law enforcement priority for the Metropolitan Police Department. Because of D.C.’s subjugation to Congress, the voter initiative cannot follow the path of  dictating to the city government how it uses its own funds, for example by barring use of funds to impose criminal penalties or creating the critical policy review panel coming together in Denver.

On July 8, the New York Post reported that Representative Harris had declared his intention to stop implementation of Initiative 81, quoting him as saying:

This is a bald-faced attempt to just make these very serious, very potent, very dangerous — both short-term and long-term — hallucinogenic drugs broadly available….Public health has to be maintained. We know, of course, once you make it a very low enforcement level and encourage prosecutors not to prosecute it, what would prevent people from using hallucinogens, getting behind the wheel of a car and killing people?

The article announced his intention to introduce a budget rider to stop Initiative 81, following his approach to stopping cannabis legalization in D.C., even though the D.C. Board of Elections had not yet certified that DNDC’s paperwork contained the minimum number of valid signatures needed to qualify the initiative for the ballot.

Marijuana Moment picked up the story from the Post on the same day and, in a followup article on July 14, characterized Harris’s intention as “planning to introduce an amendment to a spending bill during a committee meeting on Wednesday that would restrict the District from allowing the psychedelics measure to be implemented  even if it is approved by voters in November.” Apparently Representative Harris was planning to abort the initiative, preventing its implementation before it even got on the ballot.

Marijuana Moment noted that the text of the amendment had not been released. The next day Marijuana Moment reported that Harris had introduced his amendment but had withdrawn it rather than force a vote. However, he threatened that he would be back with the amendment in the event that D.C. voters were to pass it.

Representative Harris Just Handed a Major Opportunity to the Movement

Missing from the comments to date about Representative Harris’ response to Initiative 81 is an analysis of the truly staggering implications of his rationale.

I have not seen the text of the amendment yet so my analysis is based on the video recording of Representative Harris introducing the amendment and a few comments by other Representatives (see discussion beginning at 4:18) before he withdrew the bill. (I asked his office for a copy for the text – and didn’t receive a response; a representative of  Committee Chairwoman Nita Lowey said she doesn’t have it.)

In his explanation of his rationale for the bill, he anticipated that the argument would be  made in support of the initiative that Denver had already done it and then explained why that argument would be wrong.

There’s a very substantial difference between what Denver did and what’s on the ballot. This will make all the classes of hallucinogenic drugs whether they are mescaline or peyote…psilocybin…other naturally-derived hallucinogens all a low priority under all circumstances.

The argument in the ballot initiative is that there are medical uses and that there are religious uses. 

After saying that religious uses of peyote are protected under Supreme Court caselaw, he goes on to explain: 

The fact of the matter is that of this variety of drugs that would be covered there is limited data that psilocybin may be useful in some circumstances and that’s why in the Denver initiative only decreased enforcement for psilocybin not for any of the other hallucinogens. This initiative is psilocybin, mescaline which is peyote, and other hallucinogens, so the hazard here is that we’d be doing…is we’d be saying that….the laws would not be enforced in the District Columbia – using a medical reason, predominantly for the justification.

What my amendment does – it doesn’t say that Initiative 81 is negated but it only reduces the enforcement when it’s used under the recommendation of a physician…The physician recommends the use of psilocybin, because there is no use for mescaline medically, but if a physician recommends the use of psilocybin, that’s fine, Initiative 81 says that the D.C. police and attorney general will make it a very low enforcement level, which is appropriate and honestly which probably would be occurring already, that’s fine…

So what my amendment does, it says you can go ahead with Initiative 81 but it’s only for medical only under the recommendation of a physician and even if you take it under the recommendation of a physician you can’t get in a car and drive.

I think that’s reasonable.

The Staggering Implications of Representative Harris’s Proposed Amendment Schedule I Classification

The deeper meaning of Representative Harris’ conduct is that he just ceded the struggle on behalf of the federal government. He volunteered to regulate psychedelics on the legal structure of the original medical cannabis laws dating back to at least California’s Proposition 215 in 1996.

First and foremost, his rationale for the proposed amendment articulates no concern whatsoever for (a) any risks (physiological, psychological, or otherwise) from the use of psychedelic biologicals, or (b) abuse potential, two of the three criteria for placement in the federal Controlled Substances Act schedules. So that’s done. Instead, the amendment is based on a hyper-technical interpretation of the law on medical use.

Representative Harris did not declare, implicitly, only that psilocybin poses no risk to health and does not have a potential for abuse. By distinguishing between psilocybin, on the one hand, and mescaline, iboga, and DMT, on the other hand, based on that “limited data”–generated not in FDA-approved clinical trials but in observational studies–Representative Harris just vaporized the DEA’s interpretation of the “currently accepted medical use in treatment” prong of the CSA. He is ready, on the basis of an alleged therapeutic use reported in preliminary research, to cause federal law to defer to a popular vote (under local law, not even state law) that changes the legal status of a psychedelic substance. That is the length and breadth of the proposed amendment in its true effect.  (Representative Harris  also said that DC should not be known as a place where people can come to do drugs; they could be coming to see the sights and watch baseball games, but I don’t think he’s really basing his opposition to deprioritizing other psychedelics on that position.)

By logical extension, when state law permits a “medical” or maybe even “therapeutic” use of a psychedelic substance, it’s time to go to federal District Court and eventually the Supreme Court to move that substance out of Schedule I.

The opposition to psychedelic law reform has finally appeared and it’s based on the mildest of arguments–decriminalization for medical purposes as certified by a physician is OK. He just volunteered to adopt a “medical magic mushroom” policy. For all intents and purposes, there is no opposition.

I note, further, that, according to the last Marijuana Moment article, he threatened to educate Congress about the dangers of psychedelics and that Representative Tom Graves of Georgia supported the amendment on the grounds that “availability of psychedelic drugs in our nation’s capital, that’s dangerous.” Those two Representative just opened the door to a whole new front: how, pray tell, Representatives Harris and Graves, are psychedelic botanicals dangerous? On the basis of what data? 

Maybe Congress should hold hearings about psychedelic substances, a top-to-bottom review of the research and the sordid history of their prohibition? (I know — I’ve betrayed my biases.) Maybe the federal government should conduct research (under the auspices of any administrative agency other than the DEA) into use rates, emergency room visits, what is known about the long-term effects of use, and the alleged uses of psychedelics as pharmacotherapeutic adjuncts to psychotherapy? Maybe they should be re-evaluated as emergency interventions to contain numerous epidemics, and their prohibition should be re-evaluated as a declaration that state and federal governments don’t actually take those epidemics seriously since they’re not willing to use any means at their disposal?

Maybe the Only Force That Can Defeat the Psychedelic Movement Is Itself

However, there’s more. The ultimate hypothesis I derive is that the psychedelic movement will be its own worst enemy.  A year and counting after the Denver initiative passed and the Oakland City Council vote, the first real opposition has emerged and its rationale for opposing legal reform handed the movement a major win. It is clear to me that victory is the movement’s to lose.

Here are some questions for the movement: What do we have to show for ourselves? Do we manifest the claim that psychedelics can open the door to greater empathy, tolerance, understanding, and feelings of oneness with the world? Or do we replicate the patterns we denounce in the straight world: pettiness, jealousness, vindictiveness, personal attacks, arrogance, aggressive obsession with ideological purity, and so on?  Are we spiraling off into magical thinking that provides no basis for legal and policy reform recognized by the much larger societies we inhabit? Are we merely repackaging those tendencies in the strong armor of self-proclaimed actualization and enlightenment? 

I ask those questions on the basis of what I have already experienced personally or heard reported.

There are deep policy divisions in the movement. I’m not saying there is no basis for them. Even if the psychedelic start-ups and the investors therein manifest contempt for the legacy markets, I consider them an unwilling part of the movement, because they are merely a point on the spectrum of the psychedelic constituency, whether they accept that identity or not.  

I have deep reservations about the commodification and commercialization of branded pharmaceutical products, and I seek to prompt some reality checks: What happens when you promote a branded psychedelic product for profit? Leave aside the inequity of for-profit actors stepping in and proclaiming that they are the only adults in the room and that those childlike legacy markets – the ignorant savages and hippies that long preceded them – must step aside, consent to pharmaceuticalization that reifies prohibition, and pay obeisance to the settlers. What will happen if you’re allowed to pursue your goals of promoting consumption and increasing market share? Maybe you want to think about whether that’s a good idea for the collective?

Of course, the entry of profiteers into the psychedelic space is no surprise. The greater significance is that this encounter between amoral profit maximization (well-positioned on a firm cultural and legal foundation), on the one hand, and the vision of a non-extractive and equitable system struggling to burst through the concrete, on the other hand, is the front line in the struggle over which way humanity can go. 

I don’t think I’m being hyperbolic when I say that humanity stands at a precipice. The choice between sustainable life and mass death has never been as stark. There are many in the psychedelic movement – I’m among them – who sincerely believe that rapid and broad expanded access to psychedelic substances is one of the few interventions that could be effective in avoiding horrific dystopias. If so, then it’s time for the psychedelic movement to manifest those ideals and not implode, taking this once-in-an-eon opportunity to create a sustainable, livable world civilization down with it.

A version of this article first appeared on the New Amsterdam Psychedelic Law blog.