Rights and limits of decriminalization
State decriminalized 5 psychedelics, but what does that mean?
The greeter at a 21- plus party in Denver offers guests free psilocybininfused gummies as they walk in the door. A panelist shares psychedelic fungi from his home grow after speaking at the Telluride Mushroom Festival. More than 100 people convene at a Mile High City coffee shop to exchange “magic mushrooms” without exchanging money.
And everything these individuals are doing is technically legal.
In 2022, Colorado voters approved a sweeping drug reform measure that, in addition to legalizing psilocybin therapy, decriminalized five psychedelic drugs — psilocybin, psilocin, dimethyltryptamine ( DMT), ibogaine and mescaline — for personal use.
Broadly, that means it is no longer a crime to possess socalled natural medicines, grow them on private property or gift them to individuals 21 and older — and none of those actions is grounds for arrest. Selling any of the aforementioned substances remains illegal, however, although individuals may accept payment for “harm reduction services,” like education and guidance, that are associated with the use of psychedelics, according to the law.
Many of the nuances of decriminalization were outlined in a bill passed last year by the Colorado legislature to implement legalization and decriminalization. And although its language is at times decidedly explicit about what constitutes now- legal activity, some aspects were left intentionally vague, effectively creating a gray area of the law that’s open to interpretation by the public and law enforcement.
Much of the interpretation — and some confusion — stems from when it’s permissible for money to be involved and exactly what for. The law likely will be clarified further as instances testing its boundaries arise. But until then, it’s worth knowing what’s changed regarding Coloradans’ personal rights and the limits of decriminalization.
What’s ( mostly) black and white
According to the statute, anyone over 21 who grows, manufactures, uses, possesses or shares a “personal” amount of the aforementioned substances is not breaking state or local laws. ( One exception is ibogaine, which can’t be shared.) It differs from a measure that passed in 2019 — when Denver became the first city to effectively decriminalize psilocybin — because that one didn’t change the law. It simply made enforcing drug prohibitions police’s lowest priority.
Those caught consuming or displaying psychedelics in public are still subject to a $ 100 fine, however, and up to 24 hours of community service.
But what constitutes a “personal” amount is defined only in the context of cultivation. Coloradans legally can grow in 12- footby12- foot or smaller areas on private property. Anyone using a bigger space could incur a petty drug charge and fines up to $ 1,000.
There is currently no set limit on personal possession, and that’s on purpose, according to advocates who say it’s subjective. That is, of course, unless an individual is younger than 21 years old, in which case possession carries a petty drug charge, fines up to $ 100 and up to four hours of substance use education or counseling.
Police in Denver have not discussed what they would consider a personal stash, said Deputy Chief Joe Montoya.
“The police department doesn’t have an official stance on that,” he said.
It remains illegal to “dispense, sell, distribute or possess with intention to dispense, sell or distribute natural medicine,” Colorado law states. Proponents of the reform measure promised it would not allow for mushroom dispensaries like those that sell cannabis.
Individuals may receive compensation for harm reduction and psychedelic support services, such as trip- sitting or offering guidance while under the influence, as long as they do not advertise.
The purpose of specifying those exemptions is to protect people who traditionally have worked with psychedelics underground in spiritual, ceremonial and therapeutic settings, advocates say.
“You can give away natural medicines for free and still be paid for bonafide harm reduction services and bonafide support services,” Sean Mcallister, a Denverbased psychedelics lawyer who helped draft the voter- approved measure, said during a panel at the Telluride Mushroom Festival last August. “We wanted to defend communal use. We wanted to defend people sitting in a circle doing healing practices.”
The gray area
Although that may seem plain enough, the case of a Denver mushroom co- op highlights how the gray area can be exploited. According to Westword, which first reported about it, co- op founder Darren Lyman sells “psilocybin support” that comes with a complimentary side of ’ shrooms. The more members invest in support services, the more mushrooms they receive.
“It’s interesting to me that he is kind of distributing psilocybin, questionable whether he charges for it,” Denver District Attorney Beth Mccann said during a Nov. 30 meeting of the Denver Psilocybin Mushroom Policy Review Panel. “It’s a weird thing, but it seems to be circumventing the regulatory process to me.” ( McCann’s office did not make her available for an interview for this story.)
Denver resident Travis Fluck, who was active in the 2019 decr iminalizat ion movement , agrees. Since last April, Fluck has organized a weekly event called Microdose Mondays during which he offers an educational lecture about microdosing and a free month’s supply of psilocybin to attendees. The class costs $ 35, and participants gain access to followup group sessions where they can discuss their experiences.
Fluck also coordinated what he calls a mushroom “gift portal” in December. About 150 people gathered at Plant Magic Cafe in Denver,
where they wore stickers to denote whether they’d like to give or receive psychedelic mushrooms. The event was free, and Fluck invited medical and therapeutic professionals who could answer questions on site.
Fluck insists his events are legal within the scope of decriminalization. So what makes them different than the co- op?
“The law states we’re allowed to gift in proximity to harm reduction and charge remuneration for the harm reduction. That same scope can be applied to what I’m doing, but what I’m doing and what he’s doing are two vastly different things when you get granular about it,” Fluck said. “I think they’re apples and oranges, but if you’re psychedelically naive, it doesn’t look that way.”
Members of the mushroom review panel meeting called for more clarity from city and state officials about the bounds of decriminalization to deter bad actors. Fluck acknowledged that might mean events such as the gift portal, which he plans to host again in February, could come under further scrutiny. But, for now, he’s not worried about it.
“Worrying is like a waste of a perfectly good imagination,” Fluck said.
The police perspective
As noted, members of the general public aren’t the only ones interpreting the law. The Denver Post attempted to talk to 10 law
enforcement agencies and trade associations across the state to learn how decriminalization might affect protocols for arrest and search- and- seizure, and what training officers will receive about the substances.
Only Denver PD agreed to an interview. Mesa County’s district attorney provided a statement via email. The Douglas County Sheriff’s Office, Aurora Police Department, Jefferson County Sheriff’s Office and the County Sheriffs of Colorado declined to be interviewed.
Denver police and other first responders intend to work with the Multidisciplinary Association for Psychedelic Studies on crisis intervention training, Montoya said. How officers respond should they find drugs during a traffic stop will depend on the circumstances, he added, noting the response may vary between jurisdictions.
“It’s kind of similar to the red flag law, where it went into effect and every agency had their own opinions and strategies as to how they were going to deal with the law,” Montoya said.
The red flag law permits private citizens, law enforcement officers, and education and health care professionals to petition a county court to confiscate firearms temporarily from people who pose an imminent threat to themselves or others. It was adopted by Colorado in 2019 as a strategy to curb gun violence but has been debated as an infringement on Second
Amendment rights.
“There are more liberal parts of this state, and there are more conservative parts of this state politically,” Montoya continued, “so I think that will sometimes drive how they approach these things.”
In Mesa County, which includes Grand Junction, psychedelics haven’t been much of an issue even before decriminalization, said District Attorney Daniel Rubinstein. His office no longer hears about psilocybin because cases are no longer prosecuted.
Rubinstein noted one homicide case prior to the law change in which the defendant was believed to be high on psychedelics; however, the district attorney didn’t charge the individual with a drugrelated misdemeanor because it would have been a distraction, he said.
“Because of that experience, I did have some concerns about increased use and negative effects ( that) increased use could have on public safety,” Rubinstein said in an email. “I continue to have concerns about that, but have not seen any negative effects from it yet.”
Montoya said Denver police are focused on other issues, such as Mayor Mike Johnston’s homelessness initiative, the influx of migrants, gun violence and property crime such as auto theft. When it comes to narcotics, fentanyl is his department’s top concern.
“When you look at things like psilocybin, it is very, very low on the totem pole,” Montoya said.