Decriminalization vs. Legalization of Psychedelics: Why Neither Option Gets It Right
by Katie Simons, PharmD, BCPS
One of the most common questions I get asked in this line of work is, “Aren’t psychedelics still illegal?” The short answer is: yes, they are. As I mentioned in my previous article, psychedelics are still federally classified as Schedule I Controlled Substances, which means the government has decided they have “no medical value” and a “high potential for abuse.” (Insert eye roll here.) Meanwhile, research (not to mention traditional use) has shown these substances can revolutionize mental health care, so…clearly, something’s not adding up.
Here’s the kicker: even as psychedelics gain traction in states like Oregon and Colorado, we’re left with two deeply flawed options for reform—decriminalization and legalization. On the surface, they seem like steps forward, but scratch a little deeper, and they both start to look like compromises that miss the point entirely.
So let’s unpack the issue - What does decriminalization and legalization actually mean? Why is neither the golden ticket they might seem to be? And what does an alternative approach look like? (Spoiler alert: it involves getting rid of the idea that plants should be illegal in the first place.)
Decriminalization vs. Legalization
So, let’s talk about what we actually mean when we say “decriminalization” and “legalization.” These terms get thrown around a lot, but they’re not the same thing. At all.
Decriminalization: Reducing Penalties, But Not Really Reform
Decriminalization sounds good on paper—it’s all about removing criminal penalties for possession and personal use of psychedelics. But don’t get too excited. In most cases, this doesn’t mean psychedelics are legal. They’re still technically illegal, but authorities agree to “look the other way” for small amounts. Think of it as a slap on the wrist instead of handcuffs.
What It Looks Like: In cities like Denver or Oakland, decriminalization means you’re not going to jail for having psilocybin mushrooms in your backpack. But if you’re growing or sharing them with friends? That’s still a big no-no.
The Upside: At least you won’t get arrested for personal use, which is great for reducing harm in marginalized communities disproportionately targeted by drug laws.
The Downside: There’s no legal access, no safety checks, and no guidance. You’re still stuck buying from whoever’s around and hoping you’re not accidentally taking something spiked with God-knows-what.
Legalization: Regulating for Safety…or Profit
Legalization takes it a step further by setting up an actual system for the legal production, sale, and use of psychedelics. Sounds nice, right? Here’s the catch: this system usually comes with hefty regulations and price tags that make psychedelics feel less like healing allies and more like luxury items or expensive medical treatments (just look at what’s happened with ketamine clinics).
What It Looks Like: Oregon’s Psilocybin Services Act is a great example. You can legally take psilocybin—but only under the supervision of a licensed facilitator in a controlled setting. Want to grow your own mushrooms at home? Nope.
The Upside: Legalization ensures quality control, so you know what you’re getting is pure. It also makes room for research and therapeutic applications to thrive.
The Downside: It’s expensive, exclusionary, and ripe for commercialization. And let’s not ignore the irony of needing a government-sanctioned guide or prescriber to have a deeply personal spiritual experience.
A Real-Life Example: Colorado’s Proposition 122
Colorado is currently offering a real-time case study in how decriminalization and legalization can intersect—and sometimes clash. In November 2022, voters approved Proposition 122, the Natural Medicine Health Act, which decriminalized the personal use, possession, and cultivation of certain natural psychedelic substances for adults aged 21 and over. These include psilocybin, psilocin, DMT, ibogaine, and mescaline (excluding peyote, out of respect for indigenous traditions and conservation efforts).
The act also laid out a plan to roll out a regulatory framework, starting with psilocybin and psilocin. While the remaining substances remain decriminalized for now, the state has the option to introduce regulations for DMT, ibogaine, and mescaline beginning in 2026.
However, as psilocybin regulations have begun to take shape, some troubling patterns are emerging. The complexity and cost of compliance are creating significant barriers to access, and certain common practices, like microdosing (aka “unsupervised use”), aren’t addressed at all. This has led to a situation where psilocybin and psilocin are technically “legal” but regulated to the point of being inaccessible to many, while other decriminalized substances exist in a legal gray area. It’s a system that feels like boxes within boxes, leaving plenty of room for confusion.
The Reality Check
Decriminalization and legalization exist on a spectrum, but neither addresses the bigger issue: why are these substances illegal in the first place? Psychedelics have been used as sacred medicines for centuries—long before Western laws decided they were “dangerous.” Framing them as either “forbidden” or “regulated” completely misses their cultural and spiritual roots.
The Bigger Problem
And here’s the rub: both approaches feel like Western systems trying to control something they fundamentally don’t understand. Psychedelics aren’t just another product to regulate or a crime to forgive—they’re tools for healing, transformation, and connection. And when you try to squeeze something this profound into a box labeled “legal” or “decriminalized,” you lose something essential.
A System That Misses the Point
Let’s just state it: neither decriminalization nor legalization addresses the root of the issue—our society’s insistence that these substances need to be controlled at all. Psychedelics, especially plant-based ones, have been used for centuries in ceremonies and rituals to foster spiritual growth and community healing. The idea that you need permission (or a license) to access these tools feels completely backward.
When we decriminalize, we’re essentially saying, “Okay, we won’t punish you for having this, but we still think it’s bad.” When we legalize, we’re saying, “Fine, you can have it, but only if you do it our way—and pay us for the privilege.” Neither option truly respects the cultural, spiritual, or personal significance of these substances.
The Capitalist Trap
Legalization often comes with a price tag, and it’s not just the cost of the substances themselves. Regulations, licenses, and fees create barriers that make psychedelics less accessible to the people who need them most. And let’s be honest—once corporations get involved, the focus shifts from healing to profit. Look at the cannabis industry: what started as a movement for medicine and personal freedom has turned into a marketplace for gummies and branding wars.
With psychedelics, the risk is even greater. These aren’t just “products.” They’re powerful tools for personal transformation, and their value can’t be measured in dollars. The more we try to commercialize and control them, the further we move from their roots—and the deeper we dive into the trap of turning sacred medicine into a commodity.
Losing the Spiritual Thread
Here’s what really gets me: the entire point of psychedelics is to bring people back to themselves. To put the ego into perspective. To reconnect with intuition, nature, and the greater web of existence. And yet, under a legal framework, we’re expected to experience these profound shifts only with a facilitator or prescriber who holds the key. It’s like putting a price on self-discovery, which is as ironic as it is disheartening.
And decriminalization? It might be a step in the right direction, but it doesn’t solve the problem either. It’s a passive move that leaves people to navigate these substances without access to education, safe sources, or cultural context. It’s like saying, “You’re on your own now—good luck!”
Psychedelic Churches and the Religious Freedom Loophole
For many seeking to work with psychedelics in a spiritual or ceremonial context, forming a church has become the go-to workaround. Under the Religious Freedom Restoration Act (RFRA), individuals and groups are allowed to practice their religion without undue government interference—on paper, at least. Psychedelic churches, often centered on the use of entheogenic substances like ayahuasca or psilocybin, claim these practices as an integral part of their faith as a sacrament.
It’s a clever strategy, but it’s far from a bulletproof shield.
The Catch: DEA Exemptions
While RFRA provides a framework for religious protections, it’s not a free pass to use psychedelics legally. Once a church is formed, the church can then apply for DEA exemption, which, if granted, essentially gives churches permission to operate without fear of legal repercussions. However, there are two big problems with this:
The Waiting Game: The DEA has a habit of letting exemption applications pile up, leaving most churches in legal limbo - they have admitted to using psychedelic sacrament, but they do not have legal exemption.
Scarcity of Exemptions: As most applications have gone unaddressed over several decades, only a handful of psychedelic churches currently have DEA exemptions, most of which came with a high cost of years in litigation.
Without a DEA exemption, churches face significant risks. The DEA can still raid their ceremonies, confiscate property, and prosecute members. While the church’s religious status may provide some legal defense in court, it’s far from guaranteed—and it doesn’t cover hefty legal fees.
A Temporary Solution
For those dedicated to spiritual practice, forming a psychedelic church may feel like the only viable option. It does offer some legal backing and, perhaps more importantly, creates a community of shared intent and support. However, the current system forces churches into a precarious position: they’re technically protected under RFRA but still vulnerable to federal enforcement without explicit DEA approval.
The Bigger Issue
This highlights a deeper problem with psychedelic policy in the United States. When spiritual practices are forced to navigate loopholes and bureaucratic red tape, it undermines the very essence of these traditions. Psychedelics have long been used in sacred contexts, and the idea that spiritual use requires government approval feels both impractical and deeply misaligned with their purpose.
The Problem with Medicalization
Ok so what about medicalization? For many, participating in a clinical study seems like a promising way to access psychedelics legally. And let’s give credit where it’s due: these studies have given us mountains of evidence that psychedelics can be profoundly beneficial. We’re finally starting to understand how substances like psilocybin and MDMA change the brain—disrupting harmful patterns, promoting neuroplasticity, and creating space for healing.
But here’s where things start to unravel.
Stripping Away the Spiritual
The clinical trial process has one goal: to create replicable, measurable outcomes. While that’s great for convincing policymakers and scientists, it also means the experience is boiled down to a series of protocols. The mystical, ineffable aspects of the psychedelic journey—the very parts that many people find most transformative—are somewhat difficult to quantify and measure, aren’t they?
What you’re left with is an overly sanitized version of something deeply sacred. The ceremonial, spiritual, and communal aspects that have been central to these substances for centuries? Gone. Instead, you’re in a therapy room, hooked up to monitors, and guided through the experience like you’re a patient in a lab, not a participant in your own healing.
The Loss of Self-Sovereignty
Then there’s the elephant in the room: self-sovereignty. In the medicalized model, psychedelics are no longer tools you can choose to engage with on your own terms. They’re prescriptions. And like any prescription, access is controlled by gatekeepers—doctors, prescribers, and insurance companies. The message is clear: you’re not qualified to decide for yourself when, how, or why to use these substances.
This is the exact opposite of what psychedelics are meant to teach. These substances are about reconnecting with your intuition and reclaiming your autonomy, not handing over control to someone else.
Big Pharma and the Money Machine
And don’t get me started on Big Pharma. Once a psychedelic becomes a prescription drug, it’s no longer a plant or a tool for spiritual connection—it’s a commodity. Big Pharma has already started patenting molecules and delivery methods, ensuring that when (not if) these drugs hit the market, they’ll come with price tags to match.
At that point, what are we even talking about? These aren’t the same substances that have been used in sacred traditions for centuries. They’re pharmaceutical products—controlled, commodified, and stripped of their roots.
A Double-Edged Sword
It’s not that medicalization is inherently bad—it’s opened doors for research, reduced stigma, and helped countless people understand the therapeutic potential of psychedelics. And for many folks, it is exactly the set and setting needed to get results while feeling safe. But it’s also a slippery slope. When healing becomes a transaction and spirituality gets reduced to brain activity, we risk losing the essence of what makes these substances so transformative in the first place.
An Alternative Path
If decriminalization and legalization both fall short, what’s the answer? Maybe it’s time to take a step back and rethink the entire framework. Instead of trying to squeeze psychedelics into our existing systems, what if we designed an approach that actually honors their history, purpose, and potential?
Learning from Decriminalize Nature
The grassroots movement Decriminalize Nature offers a compelling perspective. Their mission is simple: remove criminal penalties for the cultivation, possession, and non-commercial sharing of plant-based psychedelics. By taking the law out of the equation, they aim to restore individuals’ connections to these substances and empower communities to create their own systems of support and education.
This approach prioritizes accessibility and cultural preservation over commercialization. It also sidesteps the pitfalls of medicalization by leaving the choice to use these substances in the hands of the people, not the professionals. It’s a model worth applauding—and building upon.
Removing Psychedelics from the Controlled Substances Act
To take this further, we need to stop treating psychedelics as dangerous contraband altogether. Removing them from the Controlled Substances Act would eliminate federal penalties for their use, possession, and distribution. States could then decide how, or if, they want to regulate these substances.
The focus of any regulation should be on harm reduction, not restricting access. This means ensuring substances are tested for purity and potency, labeled clearly, and made available with accurate information about their effects and potential harm (I mean, isn’t this what we do with cigarettes, and they kill people). Unlike the over-regulated systems of cannabis legalization, this model would prioritize safety and education without turning psychedelics into luxury items.
The Role of Personal Accountability
Central to this approach is personal accountability. Psychedelics are powerful tools, and using them requires responsibility—knowing what you’re taking, why you’re taking it, and how to prepare for and integrate the experience. Removing criminal penalties doesn’t mean removing the need for caution or care. It simply gives people the freedom to engage with these substances as they see fit, while also encouraging education and harm reduction.
Harm Reduction Done Right
In the U.S., harm reduction initiatives are already gaining traction, with organizations like PsiloSafe leading the charge by implementing testing and labeling standards for psychedelic products. By ensuring purity, potency, and accurate labeling, PsiloSafe empowers consumers to make informed decisions, thereby enhancing safety and fostering personal accountability. This approach mirrors successful European models, such as Portugal's decriminalization framework, which prioritize public health over punitive measures. In the Netherlands, programs like pill testing at festivals allow users to ensure the safety of substances like MDMA and psilocybin-containing truffles that are readily available for purchase in cities like Amsterdam. These approaches show that you can create safer environments without criminalizing users or over-regulating access.
A Vision for the Future
An ideal framework for psychedelics would combine the grassroots ethos of Decriminalize Nature with the safety protocols of harm reduction models. It would focus on empowering individuals, preserving the cultural and spiritual roots of these substances, and ensuring access without gatekeepers. It would recognize that healing doesn’t belong to the government or the healthcare system—it belongs to the people.
Last Words before I step off my Soap Box…
At the heart of the psychedelic conversation lies a simple but profound truth: these substances are tools for healing, connection, and transformation. They’ve been used for centuries to help people reconnect with themselves, their communities, and the natural world. And yet, in our rush to bring them into modern systems, we risk losing sight of what makes them so powerful.
Both decriminalization and legalization offer steps forward, but neither is enough. Decriminalization feels like a half-measure, leaving people in legal gray areas without true support or access. Legalization often replaces one barrier with another, turning sacred medicine into a regulated commodity available only to those who can afford it.
What’s needed is a complete reimagining of how we approach psychedelics. Removing these substances from the Controlled Substances Act entirely would honor their cultural and spiritual roots while creating space for personal accountability and community-based practices. Regulation, if desired, should focus on safety—purity, potency, and education—not control.
This isn’t just about policy; it’s about self-sovereignty. Psychedelics are meant to help people reclaim their power and reconnect with their inner wisdom. To restrict them with gatekeeping or commodification undermines their very purpose.
The future of psychedelics should be one that respects their past, empowers individuals, and prioritizes healing over profit. The question isn’t just how we legalize or decriminalize these substances—it’s how we protect their essence while creating a world where they can truly do what they’re meant to do: bring people back to themselves.
