Drug Policy

Pot Prohibition Continues Collapsing, and Psychedelic Bans Could Be Next

Two more states legalized recreational marijuana on Tuesday, while decriminalization of five natural psychedelics looks like a winner in Colorado.


Voters on Tuesday approved the legalization of recreational marijuana in Maryland and Missouri while rejecting similar measures in Arkansas, North Dakota, and South Dakota. Meanwhile, voters in five Texas cities passed ballot measures that bar local police from issuing citations or making arrests for low-level marijuana possession. But the most striking election result for drug policy reformers looking beyond the ongoing collapse of marijuana prohibition happened in Colorado, where a broad psychedelic decriminalization measure is winning by two points with 80 percent of votes counted.

Prior to yesterday's elections, 37 states had approved marijuana for medical purposes, and 19 of them also had legalized recreational use. The Maryland and Missouri results raise the latter number to 21.

The outcome in Maryland, a blue state where surveys indicated strong support for marijuana legalization, was widely expected. But the margin of victory is still impressive: Nearly two-thirds of voters approved a measure that legalizes possession and home cultivation for adults 21 or older while instructing the state legislature to authorize commercial production and distribution. The outcome in Missouri, a red state where support for legalization fell short of a majority in most pre-election polls, was more surprising: Although the initiative was controversial even among reformers, it won by about six points.

While Arkansas and North Dakota both have medical marijuana programs, voters in those states evidently remain skeptical of broader legalization. The Arkansas and North Dakota initiatives lost by about 12 points and 10 points, respectively. The outcome in South Dakota, where a lawsuit backed by Gov. Kristi Noem blocked a 2020 legalization initiative that was approved by 54 percent of voters, was more disappointing: Even though the 2022 initiative was shorn of potentially controversial provisions authorizing commercial sales, it lost by six points.

Unlike all of those states, Texas has not legalized marijuana even for medical use (except for low-THC CBD products). Possession of two ounces or less is still a misdemeanor punishable by up to six months in jail and a maximum fine of $2,000, and those penalties are doubled for amounts between two and four ounces. The penalties for possessing cannabis extracts, which are treated as a felony even in cases involving tiny amounts, are even more severe.

This is the context in which Austin voters last May approved an ordinance that generally prohibits the city's police department from citing or arresting people for "Class A or Class B misdemeanor possession of marijuana offenses"—i.e., offenses involving less than four ounces. Yesterday voters in Denton, Elgin, Harker Heights, Killeen, and San Marcos passed similar measures.

Compared to outright legalization or decriminalization, which would require amending or repealing state laws, these are baby steps. But they may be the best that Texans who oppose pot prohibition can manage for the foreseeable future. Although surveys indicate that most Texans favor legalization, Gov. Greg Abbott, a Republican who was re-elected yesterday, is not listening to them. Abbott supports downgrading possession of two ounces or less to a Class C misdemeanor, punishable by no more than a $500 fine. But otherwise, he sees nothing wrong with the way Texas treats cannabis consumers and the people who supply them.

"Texans have shown that they want major cannabis law reforms in Texas via polling, legislative engagement, and now at the local ballot box," says Jax James, who directs the Texas chapter of the National Organization for the Reform of Marijuana Laws. "This will have a positive impact on the almost half a million people living in these cities. While these local advancements are important in mitigating harm on citizens and reprioritizing law enforcement time, they result in a patchwork of differing marijuana enforcement policies based on location. It is time for lawmakers to take steps to enact statewide reform when they convene in January 2023."

While Texas lags behind on drug policy reform, Colorado seems to be forging ahead. If its lead holds up, Colorado's Proposition 122 will eliminate civil and criminal penalties for a wide range of noncommercial conduct related to consumption of five natural psychedelics: psilocybin, psilocyn, dimethyltryptamine, ibogaine, and mescaline. The measure allows adults 21 or older to produce, possess, transport, obtain, or share those substances.

Like a groundbreaking initiative that Oregonians approved in 2020, Proposition 122 would eventually allow adults to obtain and consume psilocybin at state-licensed businesses. Also like Oregon's initiative, Proposition 122 does not require that the customers of those businesses have any particular medical or psychiatric diagnosis. But Colorado's initiative covers a wider range of substances and conduct. It is broader than any psychedelic reform enacted until now, pointing the way to less punitive, more tolerant drug policies that go beyond winding down the war on weed.

That prospect alarms The Denver Post's editorial board. Proposition 122 "goes too far, too fast for Colorado," it warned last week. The Post acknowledged evidence that psychedelics "can help treat debilitating post-traumatic stress disorders, treatment-resistant depression, severe anxiety, and other mental illness." But it objected to the initiative's broad decriminalization provisions because they might allow psychedelic use outside of a "medical" context.

"While the intent of legalizing possession and cultivation is for medical treatment," the Post said, "we fear a robust market for recreational use would thrive. Increased legal tolerance will increase demand, which will increase the temptation for profiteering."

In the Post's view, increased tolerance is bad, because people might use psychedelics for fun. Judging from the election returns so far, Coloradans have decided that is a nightmare they can live with.