California Bill Builds on Reforms That Could Herald the Surprisingly Fast Collapse of Psychedelic Prohibition

S.B. 58, which emulates an initiative that Colorado voters approved last month, would legalize the use of five psychoactive substances found in fungi and plants.

Colorado voters last month approved a groundbreaking ballot initiative that decriminalized five psychedelics derived from fungi or plants: psilocybin, psilocyn (another psychoactive component of "magic mushrooms"), dimethyltryptamine (DMT, the active ingredient in ayahuasca), ibogaine (a psychedelic derived from the root bark of the iboga tree), and mescaline (the active ingredient in peyote). This month a California legislator introduced a bill, S.B. 58, that emulates Colorado's new policy, aiming to legalize the possession, preparation, noncommercial transfer, and transportation of those five drugs by adults 21 or older.

That bill's sponsor, state Sen. Scott Wiener (D–San Francisco), unsuccessfully tried something similar last year. It's not clear whether the new bill will have a better chance in 2023. But polling indicates that California voters are receptive to the idea, which builds on a series of reforms in other jurisdictions that suggest psychedelic prohibition could collapse faster than marijuana prohibition did, thanks largely to recent research on the potential benefits of these drugs.

"Research from top medical universities shows that these substances can have significant benefits, particularly for treating mental health and substance use disorders, and decriminalizing their personal use is part of the larger movement to end the racist War on Drugs and its failed and destructive policies," Wiener said when he unveiled S.B. 58. "This legislation follows similar, successful local efforts to decriminalize these substances in Washington, D.C., Oakland, San Francisco, and Santa Cruz, as well as successful Oregon and Colorado ballot measures."

The cities that Wiener mentioned are among the local governments that have prohibited or discouraged arrests of psychedelic users in recent years, beginning with a psilocybin initiative that Denver voters approved in 2019. Similar measures have been enacted in Detroit, Seattle, and Ann Arbor, Michigan. The local measures did not actually legalize psychedelic use. S.B. 58, by contrast, would change state law so that people engaging in the covered activities are no longer subject to criminal or civil penalties.

The range of substances covered by these measures varies from jurisdiction to jurisdiction. The Denver initiative, which has since been superseded by statewide psychedelic decriminalization, applied only to psilocybin. So does the 2020 Oregon initiative, although voters in that state simultaneously approved a measure that made low-level possession of all drugs a civil offense punishable by a $100 fine.

Oakland's 2019 ordinance and the initiative that Washington, D.C., voters approved in 2020 cover the same five substances as S.B. 58 and Colorado's Proposition 122. The resolution that the Santa Cruz City Council approved in 2020 and the ballot initiative that Detroit voters passed last year apply to "entheogenic plants." Seattle's 2021 resolution encompasses "any living, fresh, dried, or processed plant or fungal material, including teas or powders, that may contain currently scheduled or analog psychoactive indolamines, tryptamines, or phenethylamines, including, but not limited to, psilocybin mushrooms, ayahuasca tea, mescaline, and iboga."

Wiener last year introduced a decriminalization bill, S.B. 519, that included LSD and MDMA, synthetic drugs that are not covered by S.B. 58 even though both have been studied extensively. (MDMA, in fact, may be approved as a psychotherapeutic aid by the Food and Drug Administration within the next few years.) The narrower approach that Wiener is taking with his new bill looks like a concession to the sentiment in favor of "natural medicine," the term used in Proposition 122.

S.B. 519, which originally would have made it legal to obtain, possess, transport, and share the listed psychedelics, was amended to merely mandate a study of that proposition. That version got as far as a second reading but never got a final vote.

Unlike the Oregon and Colorado initiatives, S.B. 58 would not authorize state-licensed businesses where people can obtain and use psychedelics. But it would remove the threat of arrest or prosecution for users of the covered psychedelics, and it would allow noncommercial production and sharing. It imposes limits of two grams for psilocybin or psilocyn, four grams for fungi containing psilocybin or psilocyn, two grams for DMT, 15 grams for ibogaine, and four grams for mescaline. Like Proposition 122, it does not cover peyote itself.

Under current California law, possessing psilocybin mushrooms for personal use is a misdemeanor punishable by a maximum fine of $1,000 and up to a year in jail. Possession with intent to distribute is a felony punishable by up to four years in prison. Cultivation can be charged as a misdemeanor or a felony. Penalties for offenses involving other psychedelics are similarly severe. Even giving away psilocybin, psilocyn, DMT, mescaline, or ibogaine—all of which are listed, along with LSD, in Schedule I of California's Uniform Controlled Substances Act—is punishable by up to four years of incarceration.

"Psychedelics have tremendous capacity to help people heal, but right now, using them is a criminal offense," Wiener says. "These drugs literally save lives and are some of the most promising treatments we have for PTSD, anxiety, depression, and addiction. We need to end the outdated, racist, failed War on Drugs and finally pursue drug policies that help people instead of incarcerating them."

A proposed California initiative that would have legalized psilocybin and psilocybin mushrooms, including commercial production and sales, did not qualify for this year's ballot. But a 2022 poll by FM3 Research found that 58 percent of California voters favored legislation that would eliminate criminal penalties for "adults found to be in possession of small, personal-use amounts" of psychedelics and "create an opportunity for people to get access to licensed therapeutic treatment with psychedelic medicines."

That question was preceded by this information: "Psychedelic substances such as psilocybin mushrooms and MDMA are currently illegal. However, growing evidence from leading medical research institutions such as Johns Hopkins, UCLA, and New York University suggests that they can be very effective in treating mental health conditions like PTSD, anxiety, and depression."

Wiener's argument for S.B. 58 echoes this medical framing, which is similar to the way the Oregon and Colorado initiatives were presented. While opponents of the war on drugs might object to such seemingly narrow justifications (along with the special pleading for a particular class of drugs), none of these measures requires that adults who want to use psychedelics have a particular medical or psychiatric diagnosis. And the experience with marijuana shows that emphasizing a drug's therapeutic potential can pave the way for broad legalization.

Compared to the gradual collapse of marijuana prohibition, psychedelic policy seems to be shifting remarkably fast. While states began banning cannabis a century ago, culminating in the Marihuana Tax Act of 1937, prohibition of psychedelics was enacted in the late 1960s.

States began decriminalizing marijuana use, which typically meant making low-level possession a civil offense punishable by a modest fine, in the 1970s. California became the first state to legalize the medical use of cannabis in 1996, two decades later. Then 16 years elapsed before Colorado and Washington became the first states to legalize recreational use.

Denver voters approved a ballot initiative making marijuana possession arrests the city's lowest law enforcement priority in 2007, five years before statewide legalization. Denver's similar initiative dealing with psilocybin passed just three years before Colorado voters decriminalized consumption of five psychedelics, along with related activities, and two years after Oregon became the first state to legalize psilocybin.

Given the long history of incremental cannabis reforms, I did not expect marijuana legalization to happen as soon as it did. I was surprised again by the seemingly sudden success of psychedelic reform in Oregon and Colorado. But maybe Americans, despite their general resistance to principled thinking about public policy, have learned something about the folly of trying to dictate which psychoactive substances people may consume, especially when that legal regime transforms naturally occurring intoxicants into contraband.