With the increased advertising of microdosing packages and retreat centers on social media, and an ever growing number of DMs coming in from suppliers asking you to check out their stash, it may seem progress is moving quicker than it actually is… But we are still very much living in a prohibitionist era.
Read on to learn what risks you expose yourself to if your work involves providing, recommending, or advertising scheduled substances, and find out how to gauge your personal risk tolerance if working in the psychedelic sector.
The public attitude toward psychedelic medicines continues to shift. With the recent release of the How to Change Your Mind series showcasing the healing potential of psychedelic substances, people are letting out a subtle collective sigh after the COVID-19 pandemic pulled back the curtain on the global mental health crisis.
Oregon’s legal psilocybin program, which will permit adult use of psilocybin mushrooms under the supervision of licensed facilitators, is poised to come into effect on January 2, 2023. In the meantime, decriminalization and legalization of magic mushrooms will be on the Colorado ballot this November.
Several other cities and states have also taken steps to deprioritize the enforcement of criminal penalties for small amounts of possession. You can keep track of the current legal status of psychedelic substances using Psilocybin Alpha’s Psychedelic Legalization & Decriminalization Tracker.
With the increased advertising of microdosing packages and retreat centers on social media, it may seem as though we are finally clawing our way out of the shackles of prohibition, but we aren’t free yet. Psilocybin, LSD, DMT, (etc.) are all still federally classified as Schedule I drugs, and working with these substances does not come without risk.
“You shouldn’t infer safety from crowd behavior,” says Joseph Rhea, criminal defense lawyer, who spoke at Chacruna’s Psychedelic Liberty Summit in 2020.
In his talk on Administrative Law and Criminal Law Implications for Psychedelic Practitioners, Rhea instructed therapists and coaches on ways to properly assess their risk appetite if they plan on incorporating psychedelic medicines into their work.
If you are offering, or plan to offer, psychedelic support or integration services, read on to discover the risks you may take, the associated consequences, and how you can determine your own risk tolerance.
7 Levels of Risk as a Psychedelic Therapist or Coach
Joseph Rhea describes seven possible profiles of a practitioner regarding psychedelic therapies, listed here from most to least risky:
- The practitioner provides both the substance and the setting.
- The practitioner recommends specific psychedelic providers to clients.
- The practitioner provides the setting but not the substance.
- The therapist provides integration support before and after the experience as a modality but does not procure or refer anyone to the delivery of a controlled substance.
- The therapist meets with a client before and after the experience but does not offer psychedelic integration therapy per se. They make a passing recommendation in the context of ongoing treatment.
- The therapist meets with a client only after the experience but advertises their willingness to do psychedelic integration work specifically.
- The therapist offers integration only after discovering the client has had the experience. The client had the experience with no input from the therapist.
What Criminal Laws Apply?
Essentially, three types of felonies apply here, and the specifics of these laws will vary by state. In this blog, we will discuss these felonies and penalties as they relate to state law, specifically California law, rather than federal law. Unfortunately, there is not a body of case law to look at as precedents regarding psychedelic medicines.
“Even though California has the appearance of being a liberal, progressive state, our drug laws suck. It is very easy to get lulled into a sense of safety in California and think all is well. Just look at the Health and Safety Codes, and the penalties are right there,” notes Joseph Rhea.
First: Laws for sales/furnishings of a controlled substance
Though these laws vary by state, in California, sales and furnishing are considered the same thing. In other words, in terms of criminal liability, giving something away is the same as selling it.
The penalties? Well, let’s first take a look at MDMA. The sale of this substance would be prosecuted under the California Health & Safety Code 11379, and you may face up to four years of incarceration or up to nine years if the state can prove you transported the controlled substance across non-contiguous county borders.
The major psychedelics, such as LSD, N,N-DMT, 5-MeO-DMT, Ayahuasca, Peyote, and Ibogaine, are prosecuted under California Health & Safety Code 1152, and you may be facing up to five years of incarceration. Again, this increases if it can be demonstrated the substance was transported non-contiguously.
Second: Drug House Laws
Drug house laws relate to an individual opening up a space and allowing people to sell or use controlled substances. In California, opening or maintaining a drug house falls under California Health & Safety Code 11366, which states it is illegal to use a property for the provision of controlled drugs repeatedly.
For example, a psychedelic practitioner who sets up a space with the intention of delivering these substances to a client violates state drug law under this health and safety code. This felony carries a penalty of three years of incarceration.
Third: Conspiracy Laws
In his talk, Rhea elucidated the origin of the term conspiracy. Its Latin root, conspirare, means ‘to breathe together.’ It makes sense then that a criminal conspiracy applies to two or more people collaborating to commit a crime.
Conspiracy laws involve individuals who play a small role in a larger criminal endeavor yet can take on the full liability if two criteria are met:
- They know and have acknowledged what’s happening.
- They’ve taken an affirmative step.
At the state level, this falls under California Penal Code 182 PC. In California, someone involved in a larger conspiracy, even if they are a small player, takes on the liability of the bigger player.
For example, imagine a therapist who routinely recommends clients to a guide, knowing the guide will be furnishing or selling controlled substances to the client. The therapist knows what is going on and has taken an affirmative step; hence they are part of a conspiracy.
Conspiracy laws tend to be intentionally vague, and, at the federal level, drug conspiracy charges are taken very seriously.
Fourth: Possession Laws
As mentioned in the introduction to this topic, some places in the United States are decriminalizing possession of certain psychedelic substances. California is currently considering legalizing personal use and possession of MDMA, LSD, psilocybin, ketamine, DMT, mescaline, and ibogaine.
In the meantime, these psychedelics remain illegal in the state. Under California Health and Safety Code 11350(a) HS, it is a misdemeanor offense to possess a controlled substance without a proper prescription, the maximum sentence being one year in prison and a fine of up to $1000. Most first-time offenders, however, can have the charge dismissed by successfully completing a PC 1000 drug diversion program or attending drug court.
The PC 1000 drug diversion program is a rare and valuable initiative in California that allows non-violent drug offenders to obtain treatment and education instead of jail time. After successfully completing the program, “the charges are dismissed, leaving no criminal record for most purposes.”
These details are dense and quite frankly daunting. As Joseph Rhea reminded the audience in his talk, “Be aware of what’s happening in the larger environment around you rather than relying on pure conduct. If you get anything out of this talk, it is this: do not rely on pure conduct as a gauge of legality. This is the single worst thing you can do.”
What Administrative Laws Apply?
If you are an integration coach and don’t have a professional license, then the following administrative law concerns don’t apply to you.
On the other hand, if you are a therapist offering psychedelic therapy or integration support, you must be aware of these risks as they pertain to your licensure. Professional licensing agencies do have a lot of discretion when it comes to policing boundaries and norms. Be aware these vary state by state.
Brian Pilecki, in a Harm Reduction Journal article, writes, “Even though a clinician may not engage in behavior that violates the law, a licensing board has greater latitude to assess and determine if a clinician is acting outside of the boundaries of acceptable professional practice.”
Whether professional boards will get involved ultimately comes down to two questions:
Do you have a duty of care for this person?
Are you offering a modality that is not recognized by your license?
According to Nick Kemp, duty of care refers to the responsibility a practitioner has to act in the best interests of the clients and ensure a standard of ethics. “Part of providing proper duty of care means the teacher or practitioner needs to have good information about the client, know how to identify and head off any problems, and have the skills to be able to assist if there are any problems or have the ability to locate some external help.”
Which Penalties Apply to the 7 Types of Psychedelic Practitioners?
Now, let’s return to the seven possible profiles of a psychedelic practitioner and explore which penalties they may face in terms of both criminal and administrative law. These are listed in order of most to least risky.
Criminal: This scenario falls under the first two criminal laws we discussed: Sales and Furnishing and Drug House Laws. Depending on the controlled substance, you may be looking at 4-5 years, or up to 9 if it can be demonstrated the substance was transported non-contiguously.
Administrative: At the licensing level, this falls under an unapproved modality.
Criminal: Even though you are not providing the substance or the setting, you (1) know and have acknowledged what’s happening and (2) have taken an affirmative step. Even though you are playing a small role in a larger endeavor, this is a part of a conspiracy; hence you can take on the full liability.
Administrative: Once again, you have an unapproved modality at the licensing level.
Criminal: Here, you have Drug House Law applicability, because you are opening up a space for the consumption of controlled substances. The penalty here is 3 years of incarceration.
Administrative: Again, you have an unapproved modality at the licensing level.
How People Get Caught
To answer this question, Rhea reflects on the cannabis industry and notes there were two primary ways people would end up in court. These were people who (a) were visible and attracted attention and (b) generated complaints. As a psychedelic therapist or coach, knowing this may help you avoid getting caught up in legal battles
A scary scenario for a therapist would be a client who complains to a board or the police. In a Swiss case in 2009 in which a German therapist, Frederica Fisher, was treating a couple with MDMA. During the treatment course, the husband decided to leave his wife. Angry, she reported the therapist to the police, and the therapist was ultimately convicted.
2 Things Everyone Who is a Therapist or Counselor in this Field May Want to Consider
At the end of his discussion, Joseph Rhea emphasizes there are two things that everyone who is a therapist, counselor, or coach in the psychedelic field may want to consider:
1. Perform an objective risk assessment of your own behaviors.
2. Do a subjective risk assessment, because one size does not fit all.
If you are a psychedelic coach or therapist, or you plan to do this work, you’ll want to do a thorough assessment of the risks you’ll be taking and the associated penalties you may be facing. Educating yourself on the nuances of the legal landscape and being honest with yourself about your risk tolerance will help you make informed decisions as you step into this role.