[co-author: Madeline Campbell]
Photo by Kym MacKinnon on Unsplash
While there may still be uncertainty as to the full results of the 2020 election, one thing has been decided: Americans want to ease the laws criminalizing recreational drugs. On Tuesday, residents of Arizona, Montana, New Jersey, and South Dakota all voted to legalize the recreational use of marijuana. The citizens of South Dakota actually voted to legalize marijuana for both medicinal and recreational use on the same ballot, the first time both have been voted on at the same time by a state. These four states legalizing recreational marijuana brings them into the fold of 11 other states that have already legalized it — a trend that began in 2012 with both Colorado and Washington.
Oregon, which legalized recreational marijuana in 2014, furthered the cause of easing drug laws on Tuesday by passing two separate, and historic, measures. Measure 110 decriminalizes possession of small quantities of illicit drugs, including cocaine, heroin, methamphetamines and other drugs. This measure, intended to curb penalties for individuals with addictions and help fund addiction treatment programs, reclassifies smaller personal possessions to a Class E violation, subject to either a civil fine of $100 on violators or a completed health assessment by a center. There is no jail time imposed on small possession violators. Possession of larger quantities of these drugs is reduced to a misdemeanor crime under Measure 110. It should be noted though that while this measure does ease the penalties on those who use illicit drugs, it does not decriminalize the manufacture or sale of illegal drugs.
The second measure passed, Measure 109, legalizes psilocybin and makes Oregon the first state to legalize the drug for any use, although a few US cities have already decriminalized it. Psilocybin, a hallucinogen, is the psychoactive substance found in what is more commonly known as “magic mushrooms.” What is interesting about psilocybin is that it is classified as a Schedule 1 drug under the Controlled Substances Act, as is marijuana. As a Schedule 1 drug, psilocybin is considered to have a high abuse potential with no acceptable medical use in the United States. However, there is ongoing FDA-approved research that is looking into psilocybin as a breakthrough treatment for mental health disorders, particularly for treatment resistant depression. Oregon’s measure could aid further research on psilocybin to develop more effective treatment for mental health issues.
Under Measure 109, the Oregon Health Authority (OHA) will establish an Oregon Psilocybin Advisory Board to help guide the OHA. The measure allows operators to establish psilocybin service centers where patients may buy and consume psilocybin products. The measure prohibits possession, manufacture, or use of psilocybin outside of service centers established under the therapeutic framework.
Schedule I drugs like marijuana and psilocybin are still considered illegal under federal law. However, states have been passing laws and measures legalizing marijuana for years now, with California first legalizing it for medical use in 1996. States that have already legalized marijuana have done so through state regulations and taxation of the industry to keep operators in check. The DOJ also announced in 2013 that it would not interfere with marijuana operations that strictly comply with state regulations, opting only to pursue more cases involving substantial violations of state regulations. Notably, this policy was reversed in 2018 but the DOJ has left it to the discretion of individual prosecutors to pursue cases against state-legalized marijuana industries — cases which would require a lot of resources and may not succeed.
It seems that Oregon is following a similar path to regulate psilocybin. It will be interesting to see whether the federal government will prosecute all cases under Oregon’s new psilocybin legalization or if it will only pursue cases against individuals or operators who do not strictly adhere to state regulations as it has done with marijuana. The answer to the DOJ’s enforcement policy may still be hinging on the outcome of this election.
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