Psychedelic Decriminalisation vs Legalisation: Which Model is Safer

Not everyone in favour of changes to psychedelic drug policy has the same policy outcomes in mind. While the basis for this desire to end the criminalisation of psychedelic use may be the same – such as the defence of cognitive liberty – there can be disagreements about the best way to grant this right, in terms of policy.

Differences in opinion on this matter essentially boil down to whether someone favours a model of decriminalisation or legalisation. An important outcome of both models is ending criminal penalties for the possession and use of psychedelics, but the decriminalisation model ends at this aim. In countries and US states where psychedelics have been decriminalised, people who cultivate or possess psychedelics (for personal use) will not face the risk of arrest, incarceration, or seizure of goods. But selling psychedelics can still be illegal, and there won’t be licensed vendors selling them either.

In a model of legalisation, in contrast, psychedelics will be legal to sell commercially. Licensed vendors will be allowed to sell them to the public, with some regulations in place, just as other legal drugs have regulations surrounding their production and sale. Several US states have decriminalised natural psychedelics, whereas the commercial sale of psychedelics is much rarer; in the Netherlands, some psychedelics (e.g. psilocybin truffles) are legal and are sold in ‘smart shops’. Some states that have decriminalised natural psychedelics (e.g. psilocybin mushrooms) have legalised them too, but only for the specific purpose of mental health treatment, which requires a licensed facilitator.

One major factor determining which psychedelic policy model someone supports is safety and harm reduction. Both supporters of decriminalisation and legalisation believe that no one should be punished for altering their consciousness through psychedelics, but they may disagree about which policy reform respects the right to cognitive liberty while also effectively protecting users’ well-being.

I would like to summarise some of the main arguments that people offer for and against the legalisation (rather than decriminalisation) of psychedelics, specifically from a harm reduction standpoint. (To clarify, I will be focusing on the legalisation of psychedelics for personal or recreational use, so a model where people can purchase them for non-medical reasons, outside of a therapeutic-medical context.)

The first reason why advocates of decriminalisation are hesitant to support a model of legalisation is based on the belief that easier and wider access to psychedelics will result in more psychedelic-related harm – not just difficult trips but also extended difficulties like triggering first episodes of psychosis and mania in people predisposed to schizophrenia and bipolar disorder, psychedelic-induced PTSD, depersonalisation, derealisation, anxiety, depression, existential confusion, spiritual emergencies, and HPPD.

There is the question, however, of how the prevalence of psychedelic use will change following legalisation (i.e. if existing users will increase their use and how many people who haven’t used psychedelics before will start using them). This will also be related to how psychedelics are regulated. Few level-headed psychedelic advocates support an unbridled free market of psychedelic vendors or even a regulated landscape in which psychedelic products are as widespread and easy to buy as alcohol or cigarettes. Between unconstrained psychedelic legalisation and prohibition are many possible options. The non-profit Transform Drug Policy Foundation has outlined these options for psychedelics regulation in a comprehensive guide.

Even if legalisation does lead to increased use (it’s hard to imagine there wouldn’t at least be an initial spike in use following the change), certain regulatory requirements could help to prevent and minimise psychedelic-related harm. These include:

• Single-function outlets (i.e. psychedelics will be sold by specialist vendors, not sold in supermarkets or newsagents)
• Where psychedelic vendors are allowed to operate
• Functional rather than promotional packaging (i.e. restrictions on external appearance and signage)
• No promotional pricing deals
• Minimum age access (no younger than 18)
• No sales to intoxicated persons
• Purchase quantity limits (only amounts deemed appropriate for personal use)
• Provision of harm reduction information at point of sale
• Staff training to screen customers for risk vulnerabilities and refer consumers to relevant drug/support services if they need it
• Consumption tolerated in certain commercial spaces (e.g. clubs and festivals), with accompanying dedicated staff trained in psychedelic welfare
• Advertising restrictions: no marketing, branding, or promotional activity for retail or online outlets beyond functional availability and price information for adults only; and no medical claims
• Inspection and enforcement of licence conditions (potentially working with other agencies where relevant, such as trading standards, health and safety inspectorates, customs, police, etc.)
• Monitoring, evaluation, and review of the regulatory framework (adapting and updating regulations in response to emerging evidence)

Also, it is not clear (after a possible spike in use following legalisation) what the popularity of psychedelic use will be over time. Legalisation doesn’t mean every existing user or potential user will feel more motivated to purchase and use psychedelics. The ‘forbidden fruit’ effect – which refers to people’s wish to engage in a prohibited activity – means that psychedelics may lose some of their allure if they’re legalised. Indeed, among the Dutch population, there hasn’t really been a massive rise in ‘psychedelic casualties’ now that legal psychedelics have become normalised (drug tourism is another matter, however).

Furthermore, in a model of legalisation and regulation, while accessing psychedelics will be easier for adults, it will be harder for those under 18 (or 21). If (in general) legal adults are more educated and mature with respect to drug use than adolescents, then legalisation could translate to fewer instances of certain psychedelic-related harms.

A common argument in favour of legalising psychedelics, rather than only decriminalising them, is that this will lead to safer products. For example, in the underground market, 25I-NBOMe (a toxic compound) is commonly sold as LSD. Other compounds may be missold (e.g. mescaline analogues and TMA sold as mescaline), batches may be adulterated, purity is unknown, and advertised doses may be inaccurate. All of these factors increase risks, including toxicity, physical risks, psychological risks, overdose, and fatality. Some psychedelics, such as 2C-B, require very small doses, so if a chemist or dealer advertises an inaccurate dose, this could result in a highly distressing experience, perhaps requiring medical intervention.

Legalising and regulating psychedelics, on the other hand, would introduce many quality controls, thereby minimising the risk of physical and psychological adverse effects. It could be argued that better education under a model of decriminalisation is an effective form of harm reduction, but this same strategy exists (and can be mandatory and more widely available) under a framework of legalisation; plus, there are the additional benefits of ensuring consumers can only access pure, unadulterated, accurately dosed products.

There’s an argument to be made that not all psychedelics should be available in specialised retail shops. With respect to the relative risks of different psychedelics and their preparations, Transform states,

The general principle that higher-risk products justify a higher level of intervention applies to psychedelics as much as to any drug, i.e., certain types of preparations or higher dosage preparations should be subject to stricter controls and, over a certain risk threshold, retail prohibitions may be justified.

So my personal view is, I don't think anyone should go to jail for taking them, it's a no brainer, right? You shouldn't be punished for taking them. I think, though, that it shouldn't be completely legalized and deregulated because, for example, with 5-meo-DMT, there's a synthetic version for a start. It's so powerful, but if you just made it widely available, you know, you'd have a lot of psychological cases. So there needs to be some kind of – doesn't need to be medical framework – but some kind of counselling, or some kind of guidance provided with it. I don't think it should be too easily available. It should be perhaps regulated, with some kind of mentoring service that come in parallel with it. At the same time, if you do that, you're still going to get as we have now these underground distributors and providers, drug dealers, so it wouldn't necessarily change that much anyway. But I think, however it changes, we have to be very careful. I'm talking about strong psychedelics, you know, with stuff like cannabis, it's different.

Legalising psychedelics doesn’t have to mean that all compounds under the sun are sold. It could be sensible to legalise and regulate the commercial sale of some classic psychedelics but not others. I don’t think it’s wise to make 5-MeO-DMT and ibogaine as easy to buy as psilocybin mushrooms, for example. But this doesn’t mean people should be punished for using 5-MeO-DMT and ibogaine. It might just mean that, because of their unique potency or risk profile, it would be safer to make these experiences legally available at a service centre, where the experience will be supervised.

One advantage of legalising psychedelics, instead of decriminalising them, is that there is the potential for tax revenues generated from the sale of psychedelics to go towards harm reduction. This can include funding harm reduction campaigns, drug education in schools, welfare services at clubs and festivals, drug testing facilities, and clinics for extended difficulties. Of course, all of these options can (and should) exist under a model of decriminalisation, but it will be easier to fund them if psychedelics are legalised and taxed. On the other hand, this all depends on the government in power and how it decides to use the revenue generated from the commercial sale of psychedelics.

As we can see, the debate over whether psychedelic decriminalisation or legalisation should be preferred is complex, and all of the nuances of the debate cannot be fleshed out here. Nevertheless, even if one supports some form of legalisation of psychedelics for personal use, partly because of purported harm reduction benefits, this doesn’t necessarily mean decriminalisation shouldn’t be supported at the same time. Decriminalisation, or the removal of penalties for drug possession and personal cultivation, is easier to achieve than legalisation. It is also essential to the protection of cognitive liberty.

Removing these criminal penalties may be seen as a necessary first step towards achieving legalisation. Once the more likely aim of decriminalising certain psychedelics is achieved, and the effects of this move tracked over time, the public may then become more open to the idea of legalisation and regulation. This shift will also be related to the public’s level of psychedelic education, changing public attitudes about psychedelics, and the emerging evidence on the benefits and risks of these compounds. Fully legalising psychedelics may only be wise once there is already common knowledge about how these compounds should be safely used. Achieving this in the culture can go along with decriminalisation efforts, making eventual legalisation less risky.