Brittney Griner Case Brightens Spotlight on U.S. Decriminalization Efforts

Decriminalization of psychedelics continues to gain momentum in the U.S. It appears to be mirroring cannabis in how it is spreading, which is still a federally illegal substance now legal in 19 states plus the District of Columbia.

But there are moments of real concern about what decriminalization and legalization really mean in the bigger picture of a U.S. drug policy for both of these Drug Enforcement Administration Schedule 1 substances, which at times looks like it’s not much different than those of oppressive regimes around the globe.

Case in point: in the sentencing of U.S. WNBA seven-time All-Star center for the Phoenix Mercury Brittney Griner to nine years in a Russian penal colony for possession of a small quantity of cannabis oil. U.S. lawmakers have expressed outrage, even as their own constituents are still getting routinely locked up for the same offense.

The National Organization for the Reform of Marijuana Laws (NORML) Executive Director Erik Altieri released a statement about Griner that read in part that the time for platitudes is over. “The United States government needs to realize the current federal policy of marijuana prohibition and anti-marijuana laws in many states aren’t notably different than the stance held by Putin’s regime in Russia, and take real action to end those failed policies.”

Though the Griner case is about cannabis, there are similar concerns with psychedelics that also demonstrate the failed U.S. drug policy, even as psilocybin and other psychedelics work their way into mainstream medicine, sometimes in states where the harshest penalties for psychedelics possession still exist.

Life Imprisonment

Take Texas for example. According to the Texas Controlled Substances Act, a resident commits an offense if that person knowingly manufactures, delivers, or possesses with intent to deliver LSD—up to life imprisonment (Sec. 481.1121).  Same with ibogaine or mescaline—life (Sec. 481.113).  Same with psilocybin—up to life imprisonment (Sec. 48.113).

Yet Governor Greg Abbott (R-TX), on June 2021, allowed H.B. 1802 authorizing the study of psilocybin, MDMA, and ketamine to become law. Former Texas governor Rick Perry, an admitted “very anti-drug person,” called the bill “one of the most hopeful pieces of legislation that the members of the legislature have the opportunity to consider this session.”

And in Michigan, anyone using or possessing LSD, peyote, mescaline, or psilocybin can be found guilty of a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of not more than $500, or both. Yet Detroit passed Proposal E in November 2021, to decriminalize entheogenic plants (further defined as “magic mushrooms in the proposal) and fungi. More than 61 percent of voters supported the measure, with nearly 39 percent of voters opposed it, according to the city of Detroit’s unofficial election results. The Ann Arbor Michigan City Council had unanimously adopted a decriminalization resolution earlier, on September 21, 2020.

But even where psilocybin and some other psychedelics have been decriminalized, there is still a criminal attachment to it that some legislators feel obliged to include as a sort of nod to the DEA.

New Jersey reclassified possession of psilocybin in December 2020, as a “disorderly persons offense,” punishable by up to up to six months imprisonment, a fine of up to $1,000, or both, and is considering a more comprehensive bill, S2934, which authorizes production and use of psilocybin to promote health and wellness; and decriminalizes and expunges past offenses involving psilocybin production, possession, use, and distribution.

Decriminalization

Denver, the first city to decriminalize psilocybin, passed an initiative that called for the enforcement of any laws imposing criminal penalties for the personal use and personal possession of psilocybin mushrooms “shall be the lowest law enforcement priority in the City and County of Denver.” Oakland used the same phrase with its decrim Resolution No. 87731. So did Santa Cruz with its decrim Resolution No. NS-29,867. So did Detroit.

What that phrase means, exactly, is still a bit murky, and seems to be loosely defined by the whims of law enforcement, as was discovered with cannabis legalization in some areas when that phrase is left to their interpretation.

And that leads to the question: Is it time for the federal government to step in and provide real guidance, and some clarity, to psychedelics—instead of relying on a patchwork of confusing rules created by city councils and state legislatures?

Leading psychedelic advocates discussed issues in creating federal psychedelic policy during a panel at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School in April against the backdrop of the “psychedelics renaissance” in the U.S.

It was noted that, though many localities have made significant strides in addressing the legal questions surrounding psychedelic substances such as psilocybin and dimethyltryptamine (DMT), federal policymakers have not pursued similar initiatives.

For panelist Micah Haskell-Hoehl, founder of Healing Equity and Liberation (HEAL), working to create a justice framework for psychedelic decriminalization, regulation, and healing, an effective federal psychedelic policy is high stakes and requires bold action. “There’s no low-hanging fruit when it comes to federal psychedelic policy,” he said.

He said that he favors federal policy modeled after state legalization statutes, such as Oregon’s Ballot Measure 109. 

“A sort of lofty, longer-term, ideal goal would be federal decriminalization across the board of all drugs and the people who use them, and an attendant accounting for and repair of drug war harms and colonization,” he said.

But that brings up yet another side to the decriminalization discussion—psychedelic exceptionalism, an ideology that could be created by the decriminalization of psilocybin, for example, while keeping other drugs illegal.

Psychedelic decriminalization benefits people who only use psychedelics. “Psychedelic reform is essential to the larger goal of ending the War on Drugs, but as drug policy and social justice activists, we must be wary of the beliefs and stigma that psychedelic-only legislation can perpetuate,” according to the blog on the website of Students for Sensible Drug Policy.

So here we are today. A drug scheduling policy in the U.S. that outlaws psychedelic substances because they have no medicinal use, yet are turning out to be some of the best medicines for some of the oldest uncurable, untreatable human conditions. A 50-year-old “war on drugs” still oppresses people of color while states attempt to fix those disparities.

Maybe now, because of the global spotlight that Griner’s case has put on the drug policy issue, the increasingly sturdy science behind psychedelics, and the decriminalization movement gaining more traction across the country, we are reaching a critical mass to finally bring better medicine to help heal the country’s mental health needs. Maybe.