In August 2021, ketamine was removed from California Senate Bill 519 (SB 519), which would decriminalize the personal use of some psychedelic substances for adults 21 and older.
While the decision to omit ketamine was controversial, a group of organizations have come together to support the bill, which is on track for a vote next year. This coalition includes the Multidisciplinary Association for Psychedelic Studies (MAPS), Law Enforcement Action Partnership, the Indigenous Peyote Conservation Initiative, Chacruna, Veterans Exploring Treatment Solutions, and Heroic Hearts Project.
Lucid News asked Ismail Lourido Ali J.D., Director of Policy and Advocacy for MAPS, five questions about the legal status of ketamine and the future of the California decriminalization bill. Ali is a founding board member of the Psychedelic Bar Association and former Chair of the Board of Directors for Students for Sensible Drug Policy. He spoke on September 8 at a Chacruna Community Forum that looked at What’s Happening with the CA Decrim Bill.
As currently written, SB 519 would decriminalize the personal use of psilocybin, psilocyn, methylenedioxymethamphetamine (MDMA), Lysergic acid diethylamide (LSD), Dimethyltryptamine (DMT), mescaline (excluding peyote), and ibogaine. The bill is being extended into the next legislative session to give the coalition more time to educate lawmakers and build support before the reconvening of the California State Assembly on January 3, 2022.
Ketamine was removed from the now delayed SB 519 apparently after pressure from organizations such as the Organization for Justice and Equality which opposes the bill. It appears that some legislators were convinced to withdraw their support for including ketamine in the bill based on the argument that ketamine is potentially a date rape drug. Do you think efforts should be made to bring ketamine back into the bill and if so how?
Bringing ketamine back into the bill would be challenging. It might not be impossible, but since the bill’s passage out of the Assembly Health Committee was based in part on ketamine being removed, there’d have to be a lot of education to backtrack and overcome those concerns. So although it might procedurally be possible, going back on a compromise like that could complicate the process politically.
Ketamine is listed in a key federal drug law 21 USC §841(g)(2), along with GHB and other substances, which are defined as “date rape drugs” – substances used in committing rape or sexual assault. While SB 519 traveled through the CA Senate and Assembly, law enforcement and some other groups specifically mentioned that concern. However, it was ultimately the unshakeable perspective of representatives in the Assembly that led to ketamine being removed from the bill.
Why is it important that ketamine be part of SB 519? Off-label use of ketamine already allows doctors and therapists to provide ketamine-assisted therapies to patients for treatment of mental health conditions. Should licensed practitioners be the only providers permitted to distribute ketamine? Or should ketamine be available through an unregulated market?
There are a few reasons that it would have been optimal for ketamine to be included in SB 519. Ketamine is the only drug in the bill that has credible reports of it being adulterated with fentanyl. This risk affects a large number of people; in some communities ketamine may be the drug used the most, aside from MDMA. Decriminalizing personal use of ketamine would incentivize suppliers to keep it clear of adulterants.
If someone is doing drugs and they are assaulted or harmed, they are less likely to report that harm if they fear that they will be ignored or worse, prosecuted, for the underlying drug use. In other words, decriminalizing ketamine could actually disincentivize people from using ketamine to enhance harmful behavior because it would make people using drugs less afraid to speak up about problematic behavior they actually experience.
It is true that ketamine is legally available through off-label use of generic ketamine, or by being prescribed a brand name product, but either of those options costs upwards of hundreds (sometimes thousands) of dollars. I don’t think a fully unregulated market is ideal for ketamine. Maybe while psychedelics are slowly reintroduced to society, only professionals should be promoting explicitly medical or therapeutic use of it. But regulated access to non-medical ketamine for personal adult use is reasonable. That kind of control may not be necessary for other psychedelics and is inappropriately restrictive for psychoactive plants.
Those specific regulations matter, though. Uncontrolled sale and advertising of bulk ketamine for “medical use” without proportionate privacy, care, and quality control protections for “patients” – not OK. But decriminalizing personal use, funding education, prohibiting or severely limiting advertising and marketing, and ensuring accountability for unfounded/false claims – all might make sense.
If ketamine is included as part of SB 519 and decriminalized, what steps can be taken to help people from using it in a potentially unsafe way?
The most reliable way to reduce unsafe usage of any drug is accurate and honest education. There is no way to perfectly remove the potential of dependency, of overuse, or of use that can be disruptive to individuals or communities. However, better access to education (preventative approaches) and easier access to treatment (reactive approaches) in tandem reduce problematic use. Of course, use of all substances is also safer when people do it in community, and can openly talk about risks and concerns without stigma. In general, improving the mental health and well-being of people will have beneficial effects on use patterns across the board.
What do you think of the argument that some people make that possession limits included as an amendment to SB 519 are racist and will hurt BIPOC people?
We all agree that the current system of criminalization is racist and hurts people of color, and poor people of all races. In general, the fewer excuses of any kind to give law enforcement a reason to be in contact with someone, the better – we know that often, they do not need a reason. We don’t know right now if setting limits to personal possession will increase contact between law enforcement and communities working with these substances, which is already relatively low.
Cultivators, distributors, and people who carry more than the personal use amounts on behalf of their community are rightfully concerned that if SB 519 passes, possession above threshold amounts could inherently be considered distribution. While possible, this risk is relative and should be considered in the context of current law, which is unfavorable to all.
On the other hand, possession limits create “safe harbor,” clearly defined protection for people possessing lower than the permitted amounts. Unstated limits give law enforcement and prosecutors more discretion, something that is never leveraged in favor of marginalized defendants. Further, SB 519 permits aggregate possession amounts, (where a person can add up amounts for people or groups they are supporting) giving cultivators, distributors, or those holding on behalf of others a more defensible position.
I think we all also agree that the government should not control how individuals and communities relate to the tools they utilize for healing and community. Articulating appropriate regulations about different substances will require ongoing nuance and refinement, and in the meantime it is not obvious to me that one policy approach is inherently better to achieve that goal. I and my team offered recommendations that were accepted by Senator Wiener’s office and the CA Assembly Health Committee, but only after pushing back against limits for 6+ months. I do believe that accepting the limits from Oregon’s Measure 110 would have been a worse outcome, and I don’t think we could have gotten this bill through without limits at all.
What are your thoughts about a grand jury indicting police officers and paramedics in the death of Elijah McClain, the Black man who died in August, 2019 after he was placed in a chokehold by police in Aurora, Colorado and injected with ketamine by paramedics? Do you think that ketamine should be used by law enforcement to sedate suspects?
No, I don’t. This case has haunted me for the last two years. The actions of law enforcement and the medical professionals in the death of Elijah McClain were horrendous. I do not believe that incarceration and punishment contributes to the well-being of individuals or society, even if they have committed horrible acts. But while the criminal legal system utilizes those tools to illustrate its attempt at justice via retribution, it is good that the system is responding to that senseless failure. It is also not the only case in which forcible use of ketamine resulted in death.
The history of medicine and policing are both full of examples of inappropriate and coercive use of drugs and force, especially against people of color and neurodiverse people. So forcible restraint should be further restricted, something made possible by the complete halting and reversal of the militarization of police, and a commitment to actual liability of and consequences for predatory law enforcement.