“The young man with a tent full of psychedelic mushrooms in his closet isn’t worried about the cops.”
So reads the opening line of a Denver Post article, published in late August 2019, just three months after the city of Denver decriminalized psilocybin mushrooms in a historic ballot initiative vote. With the ballot initiative passing by just 50.56 percent, Denver became the first city in the United States to decriminalize psilocybin mushrooms. The article described the cultivation methods and business mindset of an anonymous mushroom dealer they described simply as “the cultivator.”
“Basically, everything in my apartment’s legal,” the young man went on to tell the reporter.
The things in his apartment weren’t actually legal, though, and speaking about them to the media would turn out to result in the arrest, one year later, of 28-year-old Denver resident Kole Milner, who authorities believe to be the Post’s anonymous mushroom-growing source, as first reported by Westword. Milner is now facing up to 20 years in prison and a $1 million fine. His is the first mushroom-related criminal proceeding to take place in Denver since decriminalization passed.
What Decrim Actually Does
When Denver decriminalized psilocybin mushrooms last May with Initiative 301, the resulting ordinance made personal possession, cultivation for personal possession, and storage for personal possession the lowest law enforcement priority in the city. The ordinance also made it so the city cannot use resources—city agents cannot take action—to make arrests or prosecute cases related to personal possession within Denver. If they did, the city could be sued.
I-301, however, did not decriminalize or provide any protection for distribution, and it did not do anything to change state and federal laws, under which psilocybin is still completely illegal and classified as a Schedule I drug. In other words, decriminalization does not equal legalization, and federal law still trumps Denver’s citywide ordinance.
“Decrim at the local level has absolutely no impact on federal law,” says Sean McAllister, an attorney in Colorado and California who served as general counsel to the Decriminalize Denver campaign. “If someone is in the city of Denver, absolutely a federal agent could come in and arrest them for distribution or even personal possession.”
That’s unlikely to happen in most circumstances, though. McAllister adds that the federal government is generally focused on large crime. “They’re not going to be prosecuting low level possession,” he says, or a case where “somebody is growing a few mushrooms—a low level cultivation situation.”
“What you’re seeing in this case is they went out and made an example of somebody because they went out and bragged in the media,” McAllister says.
The Making of an Example
The Denver Post article from August 2019 kept its subject anonymous by describing him only as “the cultivator” and using photos of him in a plain black outfit that did not show his face or any identifying characteristics. Nonetheless, the article piqued the interest of the U.S. Drug Enforcement Administration (DEA).
Web searches revealed that someone who agents suspect to be the same man had given interviews to several local and national news outlets, including Denver’s Westword, VICE, and NPR. In some of the articles the man used the name “Douglas” (which is Milner’s middle name) and wore a t-shirt featuring the logo for a company called Happy Fox Edibles—information that eventually led DEA agents to arrest Milner.
In all of the articles, the subject says similar things. “I’m not going to have to worry at all,” he told Westword.
“With decriminalization and stuff I can operate a little bit more freely,” he told NPR.
Perhaps the reason the same subject was featured in so many different news stories is because the vast majority of the Denver psychedelic community was cautious about publicity, even in the months following the passage of I-301. “There was definitely a sense in the community that, OK, decriminalization is great, but it really is a pretty small step in the right direction and there is a lot of gray area. Nobody really feels comfortable stepping out there and saying, ‘This is what I’m doing.’ That space does not feel safe yet,” says Shannon Hughes, PhD, a board member of the Nowak Society, a Denver-based psychedelic education nonprofit. “This particular person seems like they were too comfortable, too fast, thinking the environment is different than it actually is.”
That environment is one that penalizes drug dealers more than drug users, despite the built-in tension that possession of a substance carries with it: the implicit fact that the person in possession of the substance will have to have acquired it from someone else. (Unless they go through the significant effort of growing mushrooms themselves.) “Part of the bedrock foundation of the War on Drugs is somehow drug dealers are worse than drug users,” says McAllister.
Impact on the Movement
Denver’s first-of-its-kind ballot initiative last May was followed quickly by a city council resolution in Oakland, California, that decriminalized all entheogens—plant-based psychedelics. Santa Cruz, California followed Oakland with a similar reform. Neither legislation addressed distribution.
According to Ryan Munevar, Campaign Director for Decriminalize California, a statewide grassroots organization working to decriminalize psilocybin mushrooms, “Every new incarnation of decriminalization needs to learn from previous versions but unfortunately most of the organizations are dodging this incident because they don’t have a solid strategy to deal with it.”
Members of the Denver psychedelic community interviewed for this article said the arrest of Kole Milner has not spurred them to focus more on addressing distribution. Conversions about commercialization of psilocybin mushrooms and how to keep the movement grassroots, rather than following the heavily commercialized model of cannabis legalization, are ongoing, but in general the movement in Denver is still at the point of, “OK, let’s stop people from getting arrested from just using them,” says Hughes.
Following the passage of I-301 in Denver, a Psilocybin Mushroom Policy Review Panel was established, to advise the city council on how to proceed. Sean McAllister, who sits on the panel, says the city has already held trainings for local law enforcement on how to appropriately deal with people on psychedelics. The panel is also exploring avenues for therapists and counselors in Denver to work with clients around psychedelics, without losing their state-issued licenses.
McAllister says the psychedelic community, nationwide, is “struggling with concepts of commercialization” and that there will be “a very serious dialogue in the coming years about what a proper system of commercialization is going to look like.”
“There are so many issues around commercialization–around access, social justice, avoiding monopolies, avoiding big corporations,” McAllister says. “The intent of a lot of these decrim efforts is to start the conversation with the most basic thing.”