What’s the Difference between Legalization and Decriminalization?

Psychedelics & Me: Understanding the evolving regulatory landscape for psychedelic medicine

If you’ve been hearing more and more about psychedelics lately, you’re not alone. From Michael Pollan to Aaron Rodgers, psychedelics are being embraced by more wellness experts and celebrities, athletes, corporate executives, and those with mental health conditions, and has become the topic du jour in social circles, research studies, books, movies, and more.  Notably, the public conversation around psychedelics is rapidly evolving, driven by emerging research into the mental health attributes of psychedelics, evolving public perception, and a genuine interest from policymakers in creating a regulatory framework that helps Americans safely benefit from the upsides of psychedelic medicine.

As you see more and more discussion about psychedelics in the news, on your social media timelines, and during conversations at your company’s holiday parties, you may wonder what laws or regulations may be changing to allow for access to psychedelic medicine in the United States. If so, you’ve come to the right place and this blog post is for you.

First, some background:

Psychedelics, Public Policy & Mental Health

The word “psychedelic” literally means “mind revealing,” a term coined by the writer Aldous Huxley in partnership with Psychiatrist Humphry Osmond in the 1950s. The word originates from the Greek words psyche (for mind or soul) and deloun (for show). Throughout the 1950s, psychedelics including LSD, mescaline, and psilocybin, were utilized by individuals, scientists and the government. In the years that followed, universities such as John Hopkins and Harvard created promising research on the mental health benefits of psychedelics and medical studies repeatedly showed how small dosages could help counter the effects of trauma, PTSD, depression, and other mental health disorders.

However, the “war on drugs,” first launched by President Richard Nixon and expanded by President Ronald Reagan had no regard for the deep volume of scientific and medicinal research that showed the benefits of psychedelic medicine. Tens of thousands of Americans were convicted and imprisoned for crimes involving the sale and usage of psychedelic drugs (CITE).

Decades later, the studies and research that was buried during the war on drugs is reemerging, partly due to a growing search for solutions to the dual mental health and opioid epidemic facing the U.S. where more than 50 million Americans suffer from a mental illness and more than 1.6 million Americans are addicted to opioids, with more than 70,000 people dying from opioid overdose each year. This research shows that psychedelics, specifically MDMA and psilocybin, have promising impacts as therapies to treat depression, PTSD, and depression. As a result, policymakers— from state lawmakers to local city councils to President Biden’s Department of Health and Human Services— have taken action to enable the safe and legal use of psychedelic medicine.

The current legal and regulatory landscape

So, what is the legal landscape for micro-dosing? The answer in short is, it's complicated.

Most psychedelic substances, with the exception of ketamine, are listed as Schedule I drugs under the Controlled Substances Act, a federal law that spells out the U.S. government's drug policy, m these substances have “no currently accepted medical use and a high potential for abuse.” This is also the case for cannabis - making sale, possession, and usage of these substances a violation of federal law in most scenarios.

However, similar to the movement to allow for widespread cannabis sale and usage, numerous local governments and a growing number of states have taken or proposed action to create a regulatory framework for psychedelic usage. More than two dozen states— both those governed by Republicans such as Florida and Utah, and those led by Democrats such as California and New York—have taken action to either study, decriminalize, or outright legalize psychedelics. Applications for licenses to buy and sell psychedelic products in Oregon open in January 2023 and this November, Colorado voters are poised to approve state-regulated “healing centers” where anyone over 21 can receive psilocybin-assisted therapy. In New York, Assemblywoman Linda Rosenthal has proposed a bill to decriminalize psychedelic medicine. And as of October 2022, psilocybin has been decriminalized in at least nine localities, including Oakland and San Francisco, CA; Ann Arbor and Detroit, MI, and Washington, D.C.

The federal government, usually the slowest moving bureaucratic body, has also been active. The Department of Veterans Affairs is in the middle of conducting clinical trials with psilocybin, the drug in psychedelic mushrooms, to treat mental health issues. And media outlets reported in July that the Federal Drug Administration is likely to approve the use of psilocybin to treat depression sometime in the next two years. Across the Atlantic, European regulators and policymakers are also actively looking to also create a landscape where psychedelic medicinal products can be used (CITE).

Legalization and decriminalization: what’s the difference?

If you have heard about psychedelic medicine being ‘decriminalized’ or ‘legalized’ and wondered what that meant or if those are synonymous, you are not alone— these two words are often used interchangeably despite having different definitions and practical applications.  

For substances, legalization means a product that was formerly illegal - meaning it would be criminal to possess, sell, or use - is now permissible under the law. Once a substance has been legalized, individuals can use the product without being convicted or fined. Often times, restrictions are set forth along with legalization, such as age limits or use restrictions, such as for medical use only.

Decriminalization means eliminating or modifying the penalties a person is subject to if they possess, sell, or use a prohibited substance. A decriminalized substance is still illegal, but punishment is much less harsh or even non-existent. For example, a person found to be in possession of an illegal drug in small amounts would not be punished, or may receive a civil fine, drug education, or drug treatment. Decriminalization is often driven by changing societal perception, as is the case with psychedelic medicine becoming more accepted as a mental health treatment, and its use being considered a result of the changing views of society.

A third category, deprioritization, means that law enforcement puts enforcing certain drug laws lower on the list of police department or district attorney priorities. Denver was the first city to deprioritize the personal possession of mushrooms in May 2019. The California cities of Oakland and Santa Cruz have done the same. Oakland and Santa Cruz

As is the case with cannabis, governments will often first decriminalize a substance, and then seek legalization for medicinal use only. Decriminalization is often a leading indicator of shifting cultural perceptions and forthcoming legalization. Decriminalization reduces the likelihood and severity of punishment, whereas legalization removes the fear of punishment, should a user or seller follow local laws regarding age, and usage. To learn more, Psychedelic Alpha, a psychedelic news website, offers a decriminalization tracker in partnership with Emerge Law Group.