January 3, 2021
This article appeared on Harvard Law School’s Bill of Health blog.
Amid rising rates of depression, suicide, and substance use disorders, drug makers have scaled back investment in mental health research. Psychedelics may fill the growing need for innovative psychiatric drugs, but federal prohibition prevents people from accessing their benefits. Nevertheless, some cities, dissatisfied with the U.S. war on drugs, are decriminalizing psychedelics.
In 2019, Denver became the first U.S. city to decriminalize mushrooms containing psilocybin, a psychedelic the FDA considers a breakthrough therapy for major depressive disorder (MDD) and treatment-resistant depression.
In a historic vote, Denver residents approved Ordinance 301, which made prosecuting adults who possess psilocybin-containing mushrooms for personal use the city’s “lowest law enforcement priority.” Since then, in Oakland and Santa Cruz, California, voters approved their own decriminalization measures.
As a Schedule I controlled substance, psilocybin remains illegal under federal law, and despite ongoing clinical trials, it is unlikely to become FDA approved for several years. Social distancing requirements due to COVID-19 are disrupting medical research causing further delays. But as the November election approaches, other U.S. cities prepare to vote on psychedelics.
In Washington, DC, a group called Decriminalize Nature obtained enough signatures to put Initiative 81 on the DC ballot. In Portland, a group called the Oregon Psilocybin Society submitted enough signatures to put Initiative 34 to a statewide vote.
These movements reflect growing dissatisfaction with the war on drugs, which was built on a foundation of misinformation and racial animus. In 1994, John Ehrlichman, a former aide to Richard Nixon, admitted that the war was a political tool designed to target black Americans and people protesting the Vietnam War. “We knew we couldn’t make it illegal to be either against the war or black,” said Ehrlichman. “But by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.”
Nixon’s plan worked. For decades, the war on drugs has devastated communities of color by incarcerating millions, disrupting their families, and reinforcing social inequality. But racial minorities are not the only vulnerable groups impacted. The war on drugs has had other, less obvious casualties. Whereas people of color are disproportionately impacted by racial profiling and overly aggressive policing, people with mental health issues, such as depression and anxiety disorders, have been denied access to potentially life-saving medications due to a longstanding restrictions on psychedelics research.
In the 1950s and 1960s, scientists studied the therapeutic potential of psychedelics. This period is sometimes called the “psychopharmacology revolution” because it shifted the focus of psychiatry from psychoanalysis to drug therapy. However, as research on psychedelics was gaining momentum, the war on drugs brought all progress to a halt. In 1970, Congress banned psychedelics with passage of the Controlled Substances Act, which categorized most of them as Schedule I drugs with “no currently accepted medical use and a high potential for abuse.” This classification is another example of drug war misinformation.
Compared to other medications such as opioids and benzodiazepines, psychedelics are considered relatively safe and non-habit forming. One literature review ranked psilocybin the least addictive and lethal drug of twenty substances studied. Nevertheless, the CSA’s prohibition on psychedelics forced psychiatric drug development to progress along a different path.
Selective serotonin reuptake inhibitors (SSRIs), mood stabilizers, benzodiazepines, and anti-psychotics became the mainstays of modern psychiatry. However, these drugs are blunt instruments with unpleasant and dangerous side effects. Moreover, they are ineffective in roughly half the patients who try them. To appreciate the shortcoming of modern psychopharmacology, consider that electroconvulsive shock treatment, a procedure introduced in the 1930s, remains one of the safest and most effective therapies for treatment-resistant depression. The lack of effective psychiatric drugs has left millions of people without symptomatic relief for decades.
While other drug classes such as gene therapies and biologics have improved significantly in the past decade, psychiatric drug development is stagnating. Anti-depressants have changed little since the first SSRI, fluoxetine, was introduced in 1986. Meanwhile, as U.S. rates of depression and suicide are rising, exacerbated by the COVID-19 pandemic, pharmaceutical companies are shutting down psychiatric research programs and investing in other areas of drug development.
State decriminalization efforts recognize the promise of psychedelics for people with mental health concerns and aim to improve access by discouraging criminal prosecution for their possession.
Oregon’s Initiative 34 goes further. Instead of merely decriminalizing psilocybin, it would establish a statewide system for licensing, distribution, and supervised administration of the drug. The proposal is analogous to cannabis licensing programs in over half the U.S. states. However, unlike cannabis, psilocybin would be administered only by providers licensed by the Oregon Health Authority, the state’s public health agency. Only federal law enforcement could stand in the way.
One often overlooked side effect of the war on drugs is the role of the U.S. Attorney General, the nation’s top law enforcement official, as the country’s chief drug policymaker. The Attorney General controls the Drug Enforcement Administration (DEA), founded by Nixon in 1973. With power granted by Congress through the Controlled Substances Act, and delegated to the DEA Administrator, the Attorney General dictates which drugs can be produced, researched, prescribed, and consumed. However, serving as Attorney General or DEA Administrator requires no training in science, medicine, or public health.
The upcoming votes to decriminalize psychedelics arrive at a time when policing has come under intense public scrutiny. After George Floyd’s death, calls to restructure law enforcement have swept the nation. The roles of the Attorney General and DEA in drug regulation should be one target of reform, and U.S. drug policy should no longer be guided by principles that oppress minorities. As a start, the Department of Justice should issue a memorandum stating that individuals complying with state psychedelics laws will not be prosecuted.
The war on drugs has caused immeasurable harm to people of color and people with mental health conditions. In 2020, law enforcement should step aside and let public health lead.
Mason Marks, MD, JD is an assistant professor of law at Gonzaga University School of Law and a fellow-in-residence at the Petrie-Flom Center at Harvard Law School.
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