MAPS: Analysis of Colorado’s Natural Medicine Health Act: Reviewing Proposition 122/Measure 58

Here are their thoughts…

MAPS’ Policy Values

Over the last three years since MAPS published our Considerations For the Regulation and Decriminalization of Psychedelic Substances statement, multiple policy approaches to psychedelics have proliferated in U.S. cities and states, and an increasingly cohesive movement has formed to affect federal policy on psychedelic research.

We reiterate that “MAPS believes that all substances should be regulated by evidence-based, practical, and equitable frameworks — medical and otherwise — so people can benefit from intentional and safe use. MAPS encourages reformers to include measures to eliminate or substantially reduce criminal penalties associated with drug manufacture, use, possession, and distribution.” We further highlight a policy preference for harmonious approaches to reform: in other words, approaches that permit decriminalization; sacramental use; regulated adult use; medical use; harm reduction; social support; and treatment resourcing to exist simultaneously.

It is through this lens that we analyze any policy, including Colorado’s Proposition 122 (also known as the Natural Medicine Health Act or Measure 58). Proposition 122 offers an opportunity to establish adult use and decriminalization of certain psychedelics simultaneously in one state, to offer an alternative approach to total prohibition. It also illuminates the complex policy decisions and trade-offs at this front edge of psychedelic policymaking.

Summary of Proposition 122

  • Removes criminal penalties for people 21 years old and older to grow, cultivate, and share “natural medicines” defined as Covered Substances including psilocybin, ibogaine, DMT, and mescaline (not from peyote)1;
  • Provides for regulated access to psilocybin by people 21 years old and older for the first two years of a regulated access program, and then the other Covered Substances after that;
  • Provides for the development and promotion of public education and training for first responders on the use of the Covered Substances.

Analysis of Select CO Proposition 122 Provisions

Personal Use

Proposition 122 allows for adult personal use, growing, and sharing with others of the Covered Substances, and protects those actions from civil or criminal fines, penalties, or sanctions under both state or local law. Specifically, §12-170-109 defines “personal use” to include possession of the Covered Substances in an amount that includes that which would be “necessary” to share with others aged 21 or older “in the context of counseling, spiritual guidance, beneficial community-based use and healing, supported use, or related services.” This provision seems to be written to avoid imposing gratuitous restrictions on the ability of community members to utilize the substances in personal or group settings.

The measure permits remuneration (i.e. payment) for auxiliary services — but not for the exchange of the substances themselves. This expansive framing of “personal use” could include social use, personal healing, or spiritual growth, and provides a potential counterbalance to the outright “professionalization” of the use of the Covered Substances in Colorado by the regulated use infrastructure. We are intrigued by how such a provision may make room for service providers with intergenerational wisdom and extensive experience to operate in Colorado, and look on with interest for right-sized approaches to consumer protection in what would be a “new” quasi-above-ground industry, specifically as they relate to issues of ethical practice, community accountability, quality control, training, and harm reduction.

Recognizing that most people have their first psychedelic experiences with friends, not in formal, guided settings, we are hopeful that permitting personal use in a group and sharing will encourage peer support and community amongst users.

Regulated Use

The regulated adult use infrastructure in Proposition 122 is overseen by Colorado’s Department of Regulatory Affairs (DORA). While our interpretation of the language leads us to believe that DORA will not be involved in regulating personal use outside of its domain — its jurisdiction as stated in Proposition 122 is limited to the licensure system it is authorized to regulate by the Initiative — we also wonder if DORA will stand by while arguably comparable — although less formally regulated — services are offered concurrently to state-regulated ones. Martha Hartney’s question in this Chacruna piece is a good one:

 “…the NMHA permits DORA to create new professional categories and licenses as may be needed to implement the NMHA while simultaneously prohibiting the agency from disciplining licensed professionals who practice under the Personal Use model. On its face, that seems all well and good but I feel quite certain DORA will not sit idly by while its power to discipline licensees for behavior related to their professional conduct is enfeebled.”

Thus, the implementation of Proposition 122 will have to sort out the differentiation of services offered under the personal use section (unregulated by the state) and incentivize participation in the state regulated system for qualified individuals and organizations.

Proposition 122’s regulated adult use infrastructure includes provisions that were not present in Oregon’s 2020 Measure 109, which will impact the delivery of services within the regulatory environment the initiative imagines. We’re particularly interested in acknowledging and tracking implementation of the following mandates to DORA:

  • Ensuring fee, licensing, and cost structures are designed with equitable access for marginalized populations in mind. See §12-170-104(4)(6)(d).
  • Calling for regular assessments of the equity and access provisions, above, Proposition 122 may provide for continuous improvement on and iteration within the regulated use program. See §12-170-104(4)(6)(d).
  • Requiring “tiered” qualifications, education, and training requirements for facilitators based on the participants each facilitator will be working with and the services the facilitator will be providing. See §12-170-104(6)(b)(II)(A).
  • Allowing for services to occur in private residences for those who have difficulty leaving their home (e.g., those with mobility and vision impairments, compromised immune systems, or anxiety disorders). See §12-170-104(6)(c)(XI).2
  • Allowing service centers to share premises with other healing services and healthcare facilities to create “one-stop-shop” spaces. This could prove beneficial to people with limited transportation options, and could allow providers to pool resources, making start-up more feasible for low-income community members to open healing centers and inviting a chance to merge operations of traditionally siloed health and wellness modalities. See §12-170-104(6)(c)(X). Were such a combination to arise, we are hopeful that greater collaboration potential between medical, mental health, and social wellness service providers located on the same premises could result in improved safety, quality, and speed of care.3
  • Preventing municipalities from banning service centers or the provision of services, while preserving the municipalities’ power to regulate the time, place, and manner of the operation of healing centers. See §12-170-107. Local opt-outs have become a prominent question under Oregon’s Measure 109, as twenty-six counties and over 100 cities in Oregon have ballot measures for the November 2022 election to opt out of parts of or the entirety of the regulated psilocybin services program.
Public Education and Training

Many populations are still unfamiliar with — or have been given inaccurate information about — psychedelic substances. In the wake of decades of stigma and recent years of hype, accurate information is necessary for psychedelics to be responsibly integrated into society. Otherwise, access to their potential benefits could remain limited to people already connected to underground networks.

For that reason, MAPS recognizes the critical role that education and harm reduction must play in any psychedelic policy advancement. So, we are glad to see that Proposition 122 requires the development and promotion of public education campaigns and training for first responders. See §12-170-104(6)(f). MAPS has been working with the city of Denver since Ordinance 301 was passed in May 2019 to develop training curriculum and train first responder cohorts in psychology and emotional crisis response methods. We look forward to seeing opportunities for education to expand across Colorado and reduce reliance on armed law enforcement for mental health crises.

Certain populations that have been disproportionately targeted by the War on Drugs, especially Black and Latinx communities, justifiably tend to have especially complicated relationships with drugs, drug use, and therapy. It will therefore be especially important that the education developed pursuant to this measure be culturally appropriate, intellectually accessible, and delivered by “credible messengers” trusted within traditionally marginalized communities.

Trainings for first responders will also help increase safety and access to effective and compassionate emergency responses while decreasing the contact community members, especially those who are low income and/or of color, will have with the criminal legal system. This is particularly true in an environment where some of the burden of the law’s ambiguities — including the amounts individuals can possess for group use — may fall on individuals to sort out in interactions with law enforcement and the criminal justice system. We believe that training of defense attorneys — in addition to training for law enforcement preparing to interact with people utilizing psychedelics — could resolve some of those ambiguities.

Repairing the Harms of the War on Drugs

Given the estimated 45,000 collateral consequences of a criminal conviction, we recognize the importance of provisions to retroactively address the criminalization of people arrested and convicted of the possession, and ideally also the sale, of those same substances in any bill seeking to decriminalize and/or legalize controlled substances. To that end and in alignment with our goal of utilizing psychedelic policy reform to repair the harms of the War on Drugs and set the groundwork for a post-prohibition society, we’re glad to see that §12-170-109(9) of Proposition 122 allows people to petition to have criminal records sealed for activity that would not have been considered a crime if this bill were in effect when the activity was carried out. §12-170-109(9) provides that a “person who has completed a sentence for a conviction…who would not have been guilty of an offense under this Act had it been in effect at the time of the offense, may file a petition…to seal the record of the conviction at no cost.”4 It also states that “The removal and reduction of criminal penalties by this act is intended to have retroactive effect.”

While this section provides a pathway for people to have their records sealed, more work will need to be done if this initiative passes. We hope to see effort from Colorado’s executive branch to identify ways to ensure people eligible to have their records sealed under this bill also have those same records expunged automatically and at no cost to the individual.

A growing number of states are allowing for this process to be automatic. Automation is important because, while §12-170-109(9) prohibits costs associated with sealing, it still requires individuals to both know they can file a petition and know how to do so.5 In future bills or implementation of Proposition 122, we would like to see a determination of how many people with criminal records would actually be eligible for record sealing under this or related policy initiatives. This information would permit exploration into the costs of automatic sealing or expungement.

Our final concern about this section is that the language seems to require a person to have “completed a sentence for a conviction”, which implies that, even if the NMHA passes, individuals still serving a sentence of incarceration or on probation or parole for a conviction eligible for record sealing would still need to complete that period of incarceration or supervision prior to being able to petition to have their record sealed.

Conclusion

Ultimately, we recognize that all reforms are a push-and-pull of what people who think about policy all day want to see and what legislators, donors, drafters, lobbyists, opposition blocks, funders and — ultimately — voters are willing to learn about. This  inherently makes policymaking a long-term, incremental process that is subject in part to what is politically viable in that jurisdiction.

If Proposition 122 does pass — and if the lessons learned from the process of developing the regulatory structure for Measure 109 in Oregon are any indication — the details of keeping fees low, incentivizing diversity and community control, and appropriately increasing availability to a broad population, are going to be subject to a number of factors that will likely not fully reveal themselves until the implementation process begins. So, it will be up to local groups and individuals willing to participate in the implementation process to ensure that the personal use section isn’t weakened during implementation and the spirit of the measure — including the equity language — is articulated in its entirety. In the meantime, we are closely watching this attempt toward continued policy harmonization and will be ready to support implementation of this effort if the time comes.


References
  • 1 We will refer to this list as the “Covered Substances.”
  • 2 Allowing for more diverse setting options could allow individuals more ownership over designing and/or selecting environments in which they will feel most comfortable. We are inspired by architecture firms like Designing Justice + Designing Spaces that have demonstrated how the built environment in which processes — including healing processes — occur can be just as important as the processes themselves.
  • 3 This issue raises the question of the boundaries of scopes of practice for licensed professionals — and the corresponding risk management systems, like insurance, that back many of these professions. While on its face, this seems an elegant solution to a complex problem, it delays solving the inevitable tension that the question implies, as it will likely be challenging for the licensing authorities and many individuals already licensed as therapists, psychiatrists, bodyworkers, or otherwise to to fully delineate those roles at the outset.
  • 4 We note that expungement or pardon would be preferred, but that a ballot initiative in Colorado is not the appropriate vehicle for these types of record adjustment, which is left to the legislative and executive branches of the state government.
  • 5 Similar to the distinction between sealing and expungement, CO law does not permit levying a tax by ballot initiative, which may have been required to cover potential costs of automation.

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