We Need a Cole Memorandum for Magic Mushrooms

Abstract

In fall 2020, as the nation elected Joe Biden to be our Forty-Sixth President, Oregon voters also passed a noteworthy new drug law reform. Known as Measure 109, Oregon's path-breaking law legalizes the use of psilocybin, a hallucinogenic substance found in magic mushrooms.1 Measure 109 is designed to unlock the therapeutic potential of psilocybin, which advocates tout as an effective and safe treatment for depression and other psychological conditions. Given the burgeoning interest in psychedelics, many people are excited to see how Oregon's psilocybin experiment pans out. But at this point, it remains unclear whether the experiment will even get off the ground. The main reason: we still do not know how the new Biden Administration will respond to Measure 109.

Federal law currently takes a very dim view of psilocybin. The federal Controlled Substances Act (CSA) classifies the drug as a Schedule I controlled substance, making it unlawful to possess, manufacture, or distribute outside the narrow confines of a federally approved clinical research trial. Federal law also proscribes a staggering array of activities related to supplying and using psilocybin, such as providing space where people can consume the drug. Federal law thus casts a long and dark shadow over Oregon's road to reform and anyone taking a trip on that road.

President Biden and his Attorney General, Merrick Garland, have yet to disclose how they plan to respond to Measure 109. But as we mark the 100th day of the Biden Administration, let me offer the Administration some friendly advice: decline to prosecute anyone that participates in Oregon's nascent psilocybin program, as long as Oregon keeps the program under tight control.