UPDATED: What Does the Failure [or Success!] of Denver's Psilocybin Initiative Mean for the Future of Pharmacological Freedom?

Majority support for legalizing marijuana does not mean most Americans believe people have a right to control what they put into their bodies.


Yesterday Denver voters narrowly rejected a ballot initiative that would have made arrests for possession of psilocybin mushrooms by adults 21 or older the city's
"lowest law enforcement priority" and prohibited the use of "city funds or resources" for that purpose. While 48 percent of voters thought that was a good idea, 52 percent disagreed. [Update: It now looks like the measure passed by about 2,000 votes.]

The practical consequences of passing Initiated Ordinance 301 would have been pretty modest. According to Denver District Attorney Beth McCann, who opposed the initiative, just 11 psilocybin cases (out of about 50 arrests) were referred to her office for possible prosecution during the last three years, and charges were filed in just three cases. All of those cases involved manufacture or distribution, which would not have been covered by the initiative. By comparison, Denver police arrested more than 2,000 people for simple marijuana possession in 2007, the year that voters approved a similar ballot initiative for cannabis.

But in a state where voters legalized marijuana for recreational use seven years ago, the psilocybin initiative was a test of whether that victory reflected widespread acceptance of a moral principle that could be extended to other drugs. It would have been the first time any U.S. jurisdiction had decided that using psilocybin mushrooms should not be treated as a crime. Activists are working on state initiatives that would decriminalize psilocybin for medical or religious use in California and legalize medical use in Oregon.

Backers of the Denver Psilocybin Mushroom Decriminalization Initiative collected more than 9,000 signatures to qualify the measure for the ballot, and about 62,000 [update: more like 89,000] people ended up voting for it. "At the very least, we've demonstrated that we can get psilocybin legislation on the ballot," said campaign director Kevin Matthews. "My mindset is that it's not a loss; it's a lesson."

One lesson might be that it's harder to generate support for decriminalizing a drug that is not nearly as popular as marijuana. According to federal survey data, 24 million Americans have ever tried psilocybin, compared to 123 million who have tried marijuana. In 2017 just 5 million had used any "hallucinogen" (including LSD, MDMA, PCP, and a bunch of other psychedelics as well as psilocybin) in the previous year, compared to more than 40 million cannabis consumers.

Years before most Americans supported marijuana legalization (which first happened in 2013, according to Gallup), large majorities said people should not go to jail for using marijuana. In a 2002 CNN poll, for instance, 72 percent of respondents thought cannabis consumers should "just pay a fine." The 2007 Denver initiative making marijuana possession arrests the city's lowest law enforcement priority was supported by 57 percent of voters. That was seven years after Colorado voters approved medical marijuana and five years before they decided to make recreational use legal.

If allowing medical use of a drug is a prelude to broader toleration, as it proved to be with marijuana, the Food and Drug Administration's approval of psilocybin as a treatment for depression, which seems increasingly likely now that the agency has deemed it a "breakthrough therapy," may help shift public opinion. The fact that neither addiction nor fatal overdose are salient concerns in connection with psilocybin also should help, notwithstanding the drug's relatively limited appeal. There is also the precedent of allowing religious use of psychedelics, which suggests the sky would not fall if broader "spiritual" use were tolerated. And perhaps at some point Americans will question the wisdom of criminalizing the possession of fungi that pop up spontaneously in cow patties, simply because some people like their psychoactive effects.

Mason Tvert, now vice president of communications at VS Strategies, spearheaded the campaign for Denver's successful 2007 marijuana initiative. He thinks the campaign for the psilocybin initiative "inspired valuable public dialogue about psilocybin and other psychedelics, their therapeutic benefits, and how they are treated in our society." He hopes it encouraged people to "question current laws, which carry extremely harsh penalties just for simple possession."

Under current Colorado law, possession of psilocybin mushrooms is a Level 4 felony, punishable by up to a year in jail and a $100,000 fine. Distributing up to 14 grams of psilocybin mushrooms is a Level 3 felony, punishable by up to four years in prison and a $500,000 fine. Distributing more than that is a Level 2 felony, punishable by up to eight years in prison and a $750,000 fine. A bill that was approved by the Colorado legislature last week, now awaiting Gov. Jared Polis' signature, changes simple possession of psilocybin and other Schedule I or II drugs to a Level 1 misdemeanor, punishable by up to 180 days in jail and up to two years of probation.

Tvert notes that the legal treatment of psychedelics "is occasionally injected into the mainstream when new and promising research emerges, but the presence of such a measure on the ballot of a major U.S. city forced a much broader and sustained conversation." He hopes "it forced a lot of people to learn and think about this issue, as a more enlightened populace is a critical first step to enlightened policies."

So far that conversation does not seem to have had much of an impact on McCann, Denver's D.A. "We're still figuring out marijuana," she told The Washington Post, "and even though things are going well so far, we're still measuring the impacts on the people of Denver." She said she worried that if the psilocybin intiative passed, "Denver would attract more drug users and mushroom-influenced drivers would create havoc," as the Post paraphrased her concerns.

Since the initiative would have applied only to possession of psilocybin for personal use, which McCann says led to zero prosecutions in Denver from 2016 through 2018, that scenario seems pretty far-fetched. But McCann's objections show that the case for letting adults decide what they put into their own bodies has to be relitigated for every substance. Neither Denver voters nor Americans generally are close to accepting a general principle that the government has no business meddling in such decisions.

Update: The latest election results show the psilocybin initiative passing by a razor-thin margin of about one percentage point. More from C.J. Ciaramella.