In the past year, a handful of cities passed decriminalization measures on psilocybin and other plant psychedelics. Denver was the first jurisdiction to pass decriminalization, and Oakland, Santa Cruz, Ann Arbor, and most recently Washington, DC followed suit.
Each of these decriminalization measures is different, but basically they are the same in that they don’t make psychedelics legal. All they really do is direct law enforcement in these cities to make enforcing existing criminal laws a low priority and only then for non-commercial possession and use. Decriminalization measures do not change state or federal law, nor do local law.
These restrictions on decriminalization are quite significant. First of all, law enforcement agencies are generally not prohibited from making arrests, only to give them a low priority. This continues to give law enforcement agencies the discretion to make arrests. Second, decriminalization is generally limited to certain non-commercial activities. While the use or possession of certain psychedelics can be “protected”, commercial activity is not.
It is clear that even in decriminalization areas, commercial sales are not yet authorized. We want to examine two case studies after various decriminalization efforts have been carried out to show how risky things can be.
Let’s start in Denver, the first city to decriminalize psilocybin. In late September 2020, a man pleaded guilty in federal court to possessing psilocybin with the intent to distribute it. The conviction is scheduled for early December 2020. According to a press release from the Federal Prosecutor’s Office:
According to the facts contained in the defendant’s plea agreement, Milner had an elaborate psilocybin mushroom grow in his Denver apartment. His bedroom had a large air-conditioned tent equipped with lights, fans, humidifiers, dehumidifiers, and other equipment to aid in growing psilocybin mushrooms. Milner began growing and distributing psilocybin mushrooms from his apartment in November 2018. He sold under the name “Happy Fox Edibles”. Milner promoted this name through the media and was the subject of several news articles and videos relating to his growing and selling of psilocybin mushrooms.
The defendant’s arrest and pleading went well after Denver decriminalized psilocybin mushrooms. Not only do the facts make it clear that decriminalization is not at all binding on federal agencies, but it also makes it clear that the sale of psilocybin is not protected.
Now let’s turn to Oakland, the second city to decriminalize psychedelics. In late 2020, Oakland law enforcement apparently raided the Zide Door Church of Entheogentic Plants. Apparently, Oakland law enforcement found that unlike other local psychedelic organizations, Oakland believed Zide Door was a for-profit company. This was apparently the motivating factor behind the raid, and it is unclear whether any of the alleged nonprofits were robbed. We want to make it clear that these are only allegations for now and law enforcement will bear the burden to prove their case in the future.
Raids and arrests like this one are only the tip of the iceberg. Many organizations will ultimately interpret the decriminalization efforts on carte blanche to engage in commercial activities, and some of them are likely to face the wrath of law enforcement. Unless states or the federal government legalize and regulate psychedelics, organizations operating in space are exposed to immense risks. You can find more developments in the field of psychedelics on the law Law Blog.