How to Write A Decriminalization Statute

Advocating for reform is tricky business. Writing reform legislation is too.

Following Oregon’s Measure 109 and Colorado’s Prop 122, dozens of states are considering psilocybin reform. Some bills are as ambitious as Oregon’s and aim to develop their own psilocybin service framework. But the lowest-hanging fruit is decriminalization. In states like Connecticut and New Jersey, possessing small amounts of psilocybin could become a civil offense, subject to a fine but no criminal penalty.

If you’re fan of increasing personal access to psychedelics or think that Nixon’s war on drugs has done more harm than good, this is probably great news! A future where someone doesn’t go to prison for bringing a handful of mushrooms to their friend’s house sounds nice. But there’s a problem. Decriminalization statutes can be tricky to draft and if legislators mess up, it could be more than a handful of mushrooms. For example, Connecticut’s HB 6734 would decriminalize possession of over 1,000 doses of psilocybin according to its plain meaning.¹ Maybe that’s intentional, but I’m guessing it was a drafting oversight.

The rest of this essay analyzes the challenges associated with drafting a psilocybin decriminalization bill and what went wrong in Connecticut.

Decriminalization: The Quantitative/Qualitative Problem

The concept of decriminalization is simple, which might lead one to think that it’s easy to write into law. Maybe a legalese-heavy version of: “Due to shifts in popular sentiment, we the people are no longer offended by someone splitting a bag of mushrooms with their friends. So, if you get caught with 4 doses or less, we won’t throw you in jail.” That’s basically it. You select a cut-off and only criminalize possession above that threshold.

But decriminalization poses a quantitative and qualitative line-drawing problem. The quantitative problem is straightforward: you must determine where to draw the decriminalization line. In the above example I said the limit was four doses. You could just as easily say it’s only one dose. Or a dozen doses. There’s room for discretion here, but you’d be shocked to hear something like a thousand doses. More on that later. For now, it’s sufficient to understand that legislatures must make a quantitative decision.

After we’ve landed on a threshold quantity—four doses—we have a qualitative problem. How do we measure a dose? This isn’t a problem in the legal drug market. Your doctor might say “take 3 pills every 6 hours.” 3 pills count as a dose, so our threshold quantity is 12 pills. You might hear “500 mg of acetaminophen.” Now our threshold is 2,000 mg of acetaminophen. The problem? The illicit psilocybin market doesn’t have such well-defined dose mechanisms. People might take 2 grams of dried mushrooms. Or one piece of a chocolate bar. Or a microdose pill. Without a good benchmark for a dose, we can’t convert our qualitative “four dose” threshold into an actual law.

Good legislation requires a clear line, defined along an easily measured quality. That’s not so simple with psilocybin. To draw this out, let’s analyze three qualitative line-drawing methods:

1.      The weight of drug substance. We’ll call this the “pure drug model.” This one’s simple. Modern psilocybin clinical trials use an average dose of 25 mg. Our 4 dose line brings us to 100 mg. “If you possess less than 100 mg of psilocybin you are only subject to a fine of $100.”

2.      The weight of a common carrier (the “common carrier model”). The most common way to ingest psilocybin is by eating dried “magic mushrooms.” Dose sizes for dried mushrooms aren’t exactly precise measurements, but let’s say it’s roughly 2.5 grams. 4 doses at 2.5 grams gives us 10 grams. “If you possess less than 10 grams of dried Psilocybe mushrooms you are only subject to a fine of $100.”

3.      The net weight of any substance containing the drug (the “net weight model”). You don’t know exactly how someone might be transporting psilocybin. Modern psychedelic entrepreneurs package bits of mushroom in chocolate bars wrapped in flashy packaging. Some people brew tea. Others carry pills. You want to write a broad law that covers any possibility. You don’t know how much weight would constitute one dose. Perhaps you semi-arbitrarily select 10 grams. 4 doses of 10 grams each is a total of 40 grams. “If you possess less than 40 grams of a substance that contains psilocybin you are only subject to a fine of $100.”

People have evolved beyond munching on dried mushrooms. Today you can get your psilocybin via chocolate bars in flashy packaging.

As we move down the list the measured quality is increasingly removed from what really matters—psilocybin content.² If we care about how much psilocybin someone has, why not just measure the psilocybin? The pure drug model is clearly the best choice.

Not so fast. The pure drug model suffers from a problem of knowability. It’s hard—for both the government and the individual—to know how much psilocybin someone possesses. In a world where everyone consumed pure psilocybin, it would be easy. Grab a scale, tare a container, dump in the psilocybin and voila. But no one carries pure psilocybin. They have mushrooms and chocolate and gummies and the latest Wonka factory production.

The government could theoretically solve the knowability problem. They could take the Psychedelic Everlasting Gobstopper, isolate the pure psilocybin and weigh it. There’s an added expense of state-sanctioned laboratories and the administrative headache involved with chain of custody requirements, but it’s possible.

Divining psilocybin content is much harder for an individual. A core tenet of criminal law is that folks should know when they’re breaking the law and the punishment associated with that crime. It’s hard to meet that standard under the pure drug model. When you buy drugs on the black market, they don’t come with an FDA-approved drug fact label. What you get is a Ziploc bag containing a handful of shriveled mushrooms. Your dealer might say “Be careful dude, these are pretty strong.” And maybe he’s right. Or maybe it’s a sales tactic. In any case, usually, you can’t possibly know how much psilocybin you bought. You don’t have access to an expensive lab or a PhD in analytical chemistry. You aren’t going to isolate the psilocybin. Which means you don’t know if you’re breaking the law.

So knowability poses a tough problem for the pure drug model. But it’s precise. It gets right to the heart of the issue: quantity of psilocybin possession. That’s why we liked it in the first place. But is it worth it to trade knowability for precision? Maybe we can measure a slightly less precise proxy in exchange for greater knowability.

That’s what happens as we move down the list to the common carrier model.  Weight of a common carrier—dried mushrooms—is a less precise proxy for psilocybin quantity. But it’s easy to know the weight of the mushrooms. Toss the mushrooms on a scale and you’ve got it! By giving up some precision we need not worry about knowability. But we still have two problems.

The first one stems from the decreased precision. When I described the common carrier model above, I noted that dose size is hard to assess for dried mushrooms. That can pose a really big problem. Psilocybin content can range drastically between different species, from 0.1% to almost 2%.

So, we’re back to the quantitative problem. If we want to decriminalize possession of four doses or less, what constitutes a dose? Should we take the average? The low end? The high end? It’s another semi-arbitrary policy choice. Even if you’re happy with the final number, this metric is gameable. If you can create a really potent mushroom, then you can possess more psilocybin without facing criminal liability! Just look at the machinations going on right now in the “hemp” industry, where THC is measured by dry weight.

That’s not the only opportunity for gaming the common carrier model. The second issue is in the name—it only applies to the common carrier. What if someone is carrying something other than dried mushrooms? What if they made tea? Or extracted the pure psilocybin? This model has a massive blind spot once people move away from the common carrier. An entrepreneurial underground chemist could have a field day.

A possible solution is to combine the models: have a threshold for quantity of psilocybin and a separate threshold for dried mushrooms. That’s what California’s SB58 aimed to do until it ran into Gavin Newsome’s veto. Or you can broaden the scope a second time and use the net weight model.

With the net weight model, substance doesn’t matter! Regardless of carrier medium—be it tea, gummy, Wonka Bar, whatever—you just weigh the entire substance. This is as knowable (and administrable) as it gets. The government only needs a simple test kit and a scale. Citizens already know the substance contains psilocybin, so they only need the scale.

The obvious problem here is that this model trades near perfect knowability for almost no precision. The net weight of a substance is hardly a proxy for its psilocybin content.

LSD: An Extreme Example

As ridiculous as the common carrier model seems, this is what the federal government uses in sentencing for some violations of the Controlled Substances Act. LSD is a great example. LSD is extremely potent, so you must use a carrier medium to transport and consume it.³ The classic carrier is blotter paper—thick-cut paper perforated into squares and soaked in a solution containing LSD—but there are other methods, such as doling out drops of LSD-laden solution.

LSD blotter paper depicting an homage to Albert Hoffman, the chemist who first synthesized LSD and discovered its psychedelic effects in 1943.

To address the different carrier media, the federal government uses the common carrier method at sentencing. Here’s an excerpt from 21 U.S.C. §841(b)(a):

(A) [a person convicted of possessing with intent to distribute] 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) . . . shall be sentenced to a term of imprisonment which may not be less than 10 years

. . .

(B) [a person convicted of possessing with intent to distribute] 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) . . . shall be sentenced to a term of imprisonment which may not be less than 5 years.

That’s right. If you have a substance that contains LSD and you’re convicted of intent to distribute, the federal government weighs the entire substance—regardless of what that substance is or its actual LSD content. If the substance weighs a gram or more, you go to prison for 5 years; 10 grams or more, you go to prison for 10 years.

You might think this is kind of crazy. I agree. And so did the late Supreme Court Justice Stevens. In 1991, the Supreme Court issued an opinion in Chapman v. United States that directly considered these LSD sentencing provisions. A quick summary: three men were convicted of distributing 10 sheets (1,000 doses) of LSD-laden blotter paper. The paper weighed 5.7 grams but only contained approximately 50mg of LSD. The men received the mandatory five-year sentence for distributing more than one gram of a substance containing LSD. They appealed, saying they had less than one gram of LSD and therefore should not qualify for the mandatory sentence. The majority disagreed, essentially saying that the law is clear, the blotter paper was a substance that contained LSD, it weighed more than one gram, so the mandatory minimum applies.

In dissent, Justice Stevens pointed out what you’re probably thinking—yeah, sure, that’s what the law seems to technically say, but that’s kind of crazy!

“The consequences of the majority's construction of 21 U.S.C. § 841 are so bizarre that I cannot believe they were intended by Congress . . . . [T]he majority's construction of the statute will necessarily produce sentences that are so anomalous that they will undermine the very uniformity that Congress sought to achieve when it adopted the Sentencing Guidelines.”

He paints a picture of a man who dissolved one dose of LSD in a glass of orange juice. At that time, the man is guilty of possessing a substance containing LSD that weighs more than one gram and therefore would receive a mandatory five-year prison term. For one dose of LSD. Maybe not exactly what Congress intended.

All of this is a long-winded way of establishing that yes, the net weight model takes an extreme stance on the precision vs. knowability problem of drug thresholds and yes, it can have crazy consequences. But that doesn’t mean no legislature would adopt it. Maybe they expect prosecutors to exercise discretion and not bring a case against someone who had a large carrier with a small concentration of LSD. Maybe they’re worried about the problems with associated with the pure drug model.⁴ I don’t presume to fully understand how the federal government develops drug policy.

In sum, it’s no easy task to draw a drug quantity threshold—especially for a drug that comes in containers of all shapes and sizes. State legislatures have their work cut out for them. They must delicately balance the precision of measurement with the ease of measurement. It’s all well and good to decriminalize possession of 100 mg of psilocybin until you realize how difficult it is for anyone to actually know what 100 mg of psilocybin looks like.

Conclusion

There’s no perfect way to decriminalize psilocybin, but there are certainly bad ways to do it. I mentioned earlier that you wouldn’t be shocked to see a range of dose thresholds—anywhere up to a dozen doses or so. But you would be shocked to see hundreds of doses. Yet Connecticut and New Jersey are poised to do just that.

Connecticut’s HB 6734 is “an act concerning the decriminalization of possession of small amounts of psilocybin.” How does it do that? By decriminalizing possession of less than a half-ounce of psilocybin. Not “psilocybin-containing mushrooms.” Not “substance that contains a detectable amount of psilocybin.” Psilocybin. This is the pure drug model! When I discussed the pure drug model above, I said a dose of psilocybin is 25 mg. For the folks that need help converting from Freedom Units™ to metric, one half ounce is roughly 28350 mg. That’s 1,134 doses. “Small amounts” is a relative term. But I don’t think it includes 1,000 doses.

New Jersey’s S2934 does the same thing. “The bill provides that it will not be unlawful . . . [to possess] four grams or less of psilocybin.” In the same paragraph, the bill allows for cultivating “plants or fungi capable of producing psilocybin for personal use.” So the drafters drew a distinction between mushrooms that contain psilocybin and psilocybin itself, but still opted for language that invoked the pure drug model. For some quick math, 4 grams is 4,000 mg, or 160 doses.

How did this happen? First, we should note that it might not be a mistake. Maybe the Connecticut legislature really doesn’t mind folks running around with 1,000 doses of a psychedelic drug. Totally possible, but unlikely. But if it’s a mistake, what was the mistake?

I’m guessing they wanted to implement something like the common carrier model but used language from the pure drug model instead. If they used the common carrier model and the bill decriminalized possessing a half-ounce of dried psilocybin mushrooms, you get a more expected result. Again, one half ounce is ~28350 mg. If you assume roughly 1% of that weight is psilocybin, that’s 283.5 mg of psilocybin—11.34 doses. That sounds closer to what you’d expect and only requires a slight tweak in the language. Of course, it comes with all the issues of the common-carrier method but at least it won’t generate a headline like “Man Arrested With 5 Pounds of Magic Mushrooms—Must Pay $150 Fine.”

And that headline poses a real risk at both a state and federal level. Psychedelic drugs have been unpopular with mainstream American culture for a very long time. Thanks to the tireless efforts of activists, scholars, and scientists, the winds are changing. But we’re at a delicate moment. Some people are tentatively accepting increased access to psychedelics, but they’re wary. Anything that suggests the psychedelic resurgence is dangerous—such as unintentional loopholes in decriminalization statutes—can have severe blowback. To promote long-term psychedelic access, it is critical that we draft psychedelic legislation with a careful hand.

1. I’ll get to the math later, but if you’re impatient here it is: The bill decriminalizes possession of a ½ ounce of psilocybin. That’s roughly 28,350 mg. A dose of psilocybin is 25 mg. 28,350 mg / 25 mg = 1,134 doses. Yikes.

2. We should also probably care about psilocin, but that’s a post for another day.

3. LSD is so potent that doses are measure in micrograms—one millionth of a gram.

4. But you could always combine the common carrier model with the pure drug model, so if someone could prove they only had a small amount of the pure drug they would receive a lesser sentence.