Strange New Trip: The Emerging World of Psychedelic Law and Decriminalization

Multi-colored fractal background

“Many of today’s most respected North American and European psychiatric researchers, in both academics and industry, now chairmen of major university departments and presidents of national psychiatric organizations, began their professional lives investigating psychedelic drugs,” wrote Dr. Rick Strassman, clinical associate professor of psychiatry at the University of New Mexico School of Medicine, in his 2001 book, DMT: The Spirit Molecule.

Of course, a wave of laws criminalized psychedelic substances and shut down that research almost as soon as it had begun. Strassman continues, “The same psychedelic drugs that researchers thought were unique keys to mental illness, and that had launched dozens of careers, became feared and hated.”

Now, decades after substances like LSD (acid), MDMA (ecstasy), and notably psilocybin (magic mushrooms) were classified as federally prohibited Schedule 1 drugs, a new wave of research into their therapeutic potential is growing, state and local governments are decriminalizing their use, and new areas of law are opening up.

“Now there’s what’s referred to as a psychedelic renaissance …,” said Kathryn Tucker, special counsel at Emerge Law Group. “It’s just an incredible surge of interest.”

Tucker’s prior roles include service as executive director of the End of Life Liberty Project, the Disability Rights Legal Center, and Director of Advocacy and Legal Affairs at Compassion and Choices. Tucker is a  co-founder of Emerge Law Group’s Psychedelic Practice Group and a founding board member of the newly formed Psychedelic Bar Association.

On the association’s website, it states, “As laws change and the War on Drugs continues to collapse, the ‘psychedelic sector’ includes organizations, communities, individuals, trained professionals, and businesses that research, develop, produce, administer, guide, and educate about the legal use of psychedelic substances.” Its board includes nine founding board members who represent different practice areas across the country. According to Tucker, there is large and rapidly rising interest in the legal community about the burgeoning realm of law, which is on par if not larger than that of the cannabis industry.

For instance, IP lawyers are now called upon to advise organizations that want to pursue patents on things including the music that would be used during a psychedelic therapy session. Additionally, Tucker said, “The venture capital world is on fire with excitement about what this means to creating new business that will manufacture, distribute, and have opportunities of delivery of these drugs.”

If there truly is a psychedelic renaissance, then psilocybin, the active compound in magic mushrooms, is arguably its da Vinci. Researchers at Johns Hopkins University and New York University reported that a single psilocybin therapy session “substantially diminished depression and anxiety in patients with advanced cancer,” Scientific American reported in 2016. The New York Times reported that “scientists are conducting studies on whether psychedelics can be effective in treating everything from depression, autism and opioid addiction to anorexia and the anxieties experienced by the terminally ill.” In fact, a small study being conducted at the University of Washington is examining whether psilocybin-assisted psychotherapy can help front-line health care workers who developed depression and anxiety related to the COVID-19 pandemic.

Illegality, of course, made this type of research nearly impossible until recently. Decriminalization of psychedelics at the local and state levels, however, has once again opened the doors.

Denver became the first U.S. city to decriminalize psilocybin in 2019. Last October, Rolling Stone reported that Seattle became the largest U.S. city to allow non-commercial cultivation and consumption of psilocybin and other psychedelics. More recently, the city of Port Townsend adopted a resolution to decriminalize “entheogenic plants and fungi.”

At the forefront of the decriminalization wave, last November Oregon became the first state to decriminalize the use of psilocybin in supervised facilities. The Oregon Psilocybin Advisory Board, Oregon Health Authority, and other agencies are beginning the process of fleshing out the state’s program, which is scheduled to go into effect in 2023. In Washington, Senate Bill 5660, “Psilocybin Wellness and Opportunity Act,” if passed would allow a program similar to Oregon’s (as of this writing the bill had been introduced and referred to the Senate Health & Long Term Care Committee).

In addition to legislative efforts, there is one hotly watched attempt to open up psychedelic access via the courts. A case now with the Ninth Circuit Court of Appeals, Aims v. DEA, stems from a lawsuit brought by a Seattle-based palliative care physician and several patients with serious illness who sought permission from the Drug Enforcement Agency (DEA) to undergo psilocybin treatment. (Note: Tucker and other members of Emerge Law Group are representing the plaintiffs.) The request was made under recently created state and federal “right to try” laws, which allow terminally ill patients to try drugs that are still being investigated. The DEA, however, rejected that reasoning.

In addition to the ACLU of Washington, end-of-life caretakers, law professors, and bioethicists that filed briefs in support of the petitioners, eight state attorneys general, including Bob Ferguson, joined to file amicus briefs.

“Here, dying patients seek access to promising new treatments still in the investigative process—access expressly permitted under both state and federal law—to help them live in peace,” the attorneys general wrote the court.

For lawyers seeking to advise clients about these illegal substances, one obvious question is to what extent they actually can. Cannabis law provides one model for answering these ethical questions, but with caveats.

Even as medicinal and recreational use of cannabis began to gain state legality, to this day it is still an illegal, Schedule 1 drug federally. In 2014, for example, the Washington Supreme Court issued new guidance under the Rules of Professional Conduct (RPC), specifically a comment to RPC 1.2 that permitted lawyer assistance to state-approved marijuana businesses “[a]t least until there is a subsequent change of federal enforcement policy[.]”

However, there isn’t necessarily a direct correlation between rules governing the practice of law with cannabis and providing legal advice on psychedelics. Mark Fucile—who handles professional responsibility, regulatory, and attorney-client privilege matters, and law-firm-related litigation for lawyers, law firms, and legal departments throughout the Northwest—told NWSidebar that “most of the RPC accommodations in the wake of the decriminalization of marijuana mention the word ‘marijuana.’” However, in both Washington and Oregon the accommodations created to handle the tricky issues surrounding marijuana don’t extend to other drugs that are federally prohibited.

“So, the situation repeats that uncertainty for lawyers in that area,” Fucile said.