Exploring the Legalities of Trip Sitting
And a bonus footnote on the perils of reactionary drug policy
Around the country, states are choosing to depart from the criminalization of marijuana. The next frontier is, quite obviously, psychedelics. Many of these psychedelic initiatives go further than decrim- and/or medical and focus on therapeutic access. Oregon has led the way with the Psilocybin Services Act. Many others are following suit. For example, Washington.
This essay scratches an itch tangentially related to all this: whether and to what extent federal law prohibits “trip sitting”? This is an important component of these regimes not just as part of the therapy component but as a harm reduction tool.
Trip Sitting
For the purposes of this essay, it is important to define “trip sitting” or a “trip sitter.”
A trip sitter is a sober guide or counselor that sits alongside an individual embarking on an experience with a psychedelic. The benefits of trip sitting are many. Having a trip sitter “along for the journey can make the difference between a meaningful and challenging trip.” It is also a valuable harm reduction practice.
This essay is not about the technique of trip sitting, which I am ill-equipped and entirely unqualified to discuss. Many articles written by far more qualified individuals cover this ground. For the purposes of this discussion, I simply note that the concept of trip sitting is not limited to having a friend come over and sit close by while one explore the inner psyche in one’s own house. It could also include having professionals attend a festival or come to the bedside of a dying patient in a facility.
As state laws liberalize psychedelics use, the role of trip sitting should be something that lawmakers and regulators consider and encourage. But of course, state laws that legalize use of Schedule I substances are inherently inconsistent with the Controlled Substances Act. So how can medical professionals participate in state law psilocybin programs without putting their controlled substances licenses at risk, if at all? Surely, a professional cannot dispense psilocybin and remain CSA compliant. Nor could she host psilocybin use. But could she counsel a patient before a trip? What about during a trip?
The Controlled Substances Act
To answer these questions, we must start with the federal Controlled Substances Act. The CSA establishes a closed distribution system for controlled substances. In this “closed” system, all persons in the “legitimate distribution chain” must register with DEA.
Several interlocking statutory provisions form this closed system. In general, the way this works is that the CSA criminalizes unauthorized conduct involving controlled substances listed on the schedules. Criminalized conduct ranges from manufacture all the way down to possession for personal use. The following table illustrates some of the conduct the CSA prohibits:
In short, the CSA directly criminalizes just about anything one would do with a drug—and apparently, especially so if it is near a truck stop. But the Act does not directly criminalize all incident activity related to drugs. In particular, it does not criminalize counseling—whether prior to, during, or after a psychedelic experience.
Sadly, that doesn’t end our inquiry for at least two reasons:
Problem #1: Under general federal law, whoever “aids, abets, counsels, commands, induces or procures [the] commission” of a federal offense is punishable as a principal.
Problem #2: the CSA makes it an offense for any person to attempt or conspire to commit an offense under the CSA.
The issue thus presents itself: could a trip sitter be liable for aiding and abetting one of the aforementioned CSA violations?
Conant v. Walters
The issue of incident activity has arisen before in likely the most important drug policy case ever litigated: Conant v. Walters. Indeed, that is so for several reasons. It is no exaggeration to say that without the success of Conant, none of what has happened in the past two decade would have been possible. Just about everything relevant today stands on the shoulders of Conant in one way or another. In particular, Conant is the case that gave states some leave to depart from the federal government.
In 1996, California enacted Proposition 215, authorizing medical marijuana in the state. Less than two weeks later, the Office of National Drug Control Policy (which is required to oppose the use of Schedule I substances) issued a policy statement stating “that a practitioner's action of recommending or prescribing Schedule I controlled substances is not consistent with the ‘public interest’ (as that phrase is used in the federal Controlled Substances Act), and will lead to administrative action by the Drug Enforcement Administration to revoke the practitioner's registration.” The ONDCP statement indicated that DOJ and HHS would send letters to national, state, and local practitioner associations and licensing boards, stating that DEA would revoke the registrations of physicians that recommended or prescribed Schedule I substances.
In Conant, physicians, physician organizations, patients, and patient organizations challenged the federal action. The district court enjoined the government policy because (1) it affected protected speech in the doctor-patient relationship and (2) it concluded that states are the primary regulators of professional conduct. The court noted that “there is First Amendment protection in the practice of the learned professions” and therefore, the court had to balance those protections against the State’s legitimate interest in regulating the activity in question. And while the federal government had a legitimate interest in suppressing and controlling the flow of dangerous drugs and controlled substances within the United States, doctors also had a legitimate need to discuss with and to recommend to their patients all medically acceptable forms of treatments.
The Ninth Circuit upheld the injunction on First Amendment and federalism grounds. The government argued that a “recommendation is analogous to a ‘prescription’ of a controlled substance,” which federal law clearly bars. The Ninth Circuit, however, rejected the claim and held that “[i]f, in making the recommendation, the physician intends for the patient to use it as the means for obtaining marijuana, as a prescription is used as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law.” But if the doctor merely engaged in the dispensing of information, and not the dispensing of controlled substance, the injunction would not undermine federal law. The court explained that aiding and abetting in this way required proof of four elements:
that the accused had the specific intent to facilitate the commission of a crime by another;
that the accused had the requisite intent of the underlying substantive offense;
that the accused assisted or participated in the commission of the underlying substantive offense; and
that someone committed the underlying substantive offense.
But as the court held, a doctor’s anticipation of patient conduct, however, neither translates into aiding and abetting, nor conspiracy.
This aspect of Conant somewhat translates to “trip sitting.” Certainly, it is unlawful for a trip sitter to procure a controlled substance for another. And probably a trip sitter cannot lawfully facilitate the unlawful acquisition of a controlled substance. But sufficiently remove oneself from the act of acquiring a controlled substance and the ghost of aiding and abetting liability fades.
Do note that this is a fine line because the CSA criminalizes just possession. And to aid and abet possession, one “need not have assisted the principal in obtaining the drugs, he need only have aided or abetted the retention of possession.” United States v. Washington, 12 F.3d 1128, 1136 (D.C. Cir. 1994). In United States v. Poston, for example, the defendant argued that he could not have aided or abetted the principal’s possession with intent to distribute because the defendant had purchased the PCP from a third party before requesting a ride from the defendant. The court rejected that argument, however, noting that prior decisions had upheld the convictions of persons, such as lookouts or bodyguards, who aided or abetted the retention of possession. In contrast, courts have held that mere proximity to a drug or association with another even when one knows the other possesses a drug is not enough. See, e.g., United States v. Staten, 581 F.2d 878, 884 (D.C. Cir. 1978).
What all this means is that “trip sitting” is probably legal if a trip sitter does not assist or participate with the acquisition and retention of the drug at any time before use. But please consult an attorney if you are concerned. This is not legal advice. The legality of conduct depends on the facts of a case.
One More Thing: Premises Liability
Two years after Conant, then-Senator Joe Biden put forward the Reducing Americans' Vulnerability to Ecstasy (RAVE) Act. Later passed as the Illicit Drug Anti-Proliferation Act and codified into 21 U.S.C. § 856(a), the new law amended the crack house statute in the CSA to penalize festival promoters, club owners and other operators of music venues, holding them responsible for their patrons’ drug use. As Shane explains in a prior post, this is the same backwards “crack house” statute that currently stands in the way of safe injection facilities. Cutting through the verbiage, the statute makes it unlawful to knowingly use, maintain, or control a place, permanently or temporarily, for the purpose of using any controlled substance.
Certainly, this statute does not criminalize the act of trip sitting. But once again, it does criminalize an act a trip sitter might engage in, depending on the circumstances.
For example, since the RAVE Act, concert and festival promoters have discouraged harm reduction groups like the Zendo Project and DanceSafe from attending events. Why? Because premises liability requires the defendant “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.” Having or permitting a harm-reduction group on premises can show that a defendant knowingly permitted its space to be temporarily used for the purpose of using a controlled substance. Perverse, but unfortunately, an argument that has been made.
And because of premises liability, a person also couldn’t maintain a place of business for the purpose of trip sitting, i.e., knowingly using a place temporarily for the purpose of using a controlled substance. But the trip sitter could go to a home or place controlled by another, or perhaps, work remotely.
Yet another backwards consequence of the crack house statute.1
Bonus tangential footnote: Drug policy is marred by legislative and regulatory decisions that have arisen less out of considered debate or deliberative and calculated policy but more out of rushed decisions rooted in paranoia, fear, sensationalism, and misreported facts.
Most prominently, the efficacy requirement in the FDCA that looms large over everything and is responsible for the time-consuming drug approval process. It has played an outsized role in medicine, transformed the FDA into a regulatory juggernaut, and has given Big Pharma inordinate amounts of power over our lives. And it also is why marijuana and other safe substances aren’t legal.
Quite arguably, whatever this efficacy requirement did early on to protect the American public, it has grown to make drugs less safe and efficacious. Because of the time-consuming process FDA enacted under this statutory amendment, come the 1980s, FDA didn’t have enough staff or resources to timely approve drugs. So, Congress passed the Prescription Drug User Fee Act to allow FDA to fund itself from money from to timely review New Drug Applications. Unfortunately, as I have previously explained, decades later, and the PDUFA has led to FDA receiving more funding from the pharmaceutical/healthcare complex over the federal government. That—along with the revolving door—results in regulatory capture. And with regulatory capture, we get drugs that aren’t really efficacious and in some cases, harmful. See Aduhelm, and if you are really interested this topic, this recent book by John Abramson. According to Abramson, only one out of every eight drugs approved by the FDA actually pushes medicine forward in a meaningful way. Staggering.
Of course, few legislation has had as much impact on our daily lives as the efficacy and well-controlled studies requirement. Amazingly, it wasn’t the product of considered debate. It got baked into the 1962 FDCA Amendments as a relatively last-minute and reflexive amendment in the wake of the thalidomide tragedy. Before the tragedy, the 1962 Amendments were losing steam in Congress (and opposed by the AMA and some in the industry). After, the tragedy, the Amendments unanimously passed. Any considered and reasonable understanding of the thalidomide tragedy, however, shows that it (a) was not a regulatory failure in the United States and in any event (b) was a failure tied to safety not efficacy.
In fact, it was an unquestioned regulatory success. In 1960, before the days of regulatory capture, the FDA official reviewing thalidiomide’s NDA, Dr. Francis Kelsey reviewed the file and refused to approve the drug. So, thalidiomide was never approved by the FDA because it wasn’t safe. Dr. Kelsey carefully reviewed the evidence and refused to rely on information from the drug sponsor. In other words, the exact opposite of Alduhelm.
Nor was the problem with thalidiomide efficacy: nobody disputed that it was an effective sedative and treatment for morning sickness. The problem was that it hadn’t been safety-tested in the target population and proved grievously unsafe for use by pregnant women and led to birth defects. That was a safety issue, which the 1938 version of the FDCA already addressed, evidenced by the fact that the FDA never approved the drug. Thus, fear and paranoia from the thalidomide tragedy led to consequential legislation that transformed the drug industry but had little to do with the cause of the tragedy.
Why do I discuss that here? Because the 1986 Anti-Drug Abuse Act, of which the crack house statute is a part, is yet another example of reactionary and reflexive non-deliberative drug policy. The legislation passed in the wake of Len Bias’s death, rumored to be caused by crack cocaine. But the rumor was entirely without basis. In fact, Bias had snorted powder cocaine. To President Biden’s immense credit, on the Senate floor, he cautioned against casually enacting provisions and launching “another war on drugs,” political opportunism, and hasty decision making.
This is, by the way, why we do this newsletter. Drug policy and regulation—from harm-reduction to patent issues—should not be based on politics or emotion. In many cases, lives are at stake. The conversation should be guided by a careful evaluation and sophisticated understanding of history, science, legal frameworks, and logical argument rooted in the facts.