Two Paths to Drug Reform

David Pozen

It is a rare point of consensus in contemporary politics that our system for regulating drugs has not been working as intended.  Since the 1970s, the United States has managed to experience exponential growth in both drug incarceration rates and drug overdose death rates.  Meanwhile, millions of Americans have been channeled into illicit markets or denied access to substances that would have benefited them.  Few policy failures can compete with U.S. drug law in terms of sheer perversity. 

How can we get out of this mess?

One path might involve changes to the way drugs are “scheduled” under the Controlled Substances Act and analogous state laws.  The existing schedules often force regulators into a Hobson’s choice between overcriminalizing drugs, through prohibitions that predictably backfire, or overcommercializing drugs, through hands-off approaches that leave users vulnerable to corporate exploitation.  The framework for deciding which drugs belong in which schedules, moreover, indefensibly ignores all but a small set of medical considerations.  In a recent law journal article and a companion piece in Science, Matthew Lawrence and I explain how scheduling could be improved by expanding this framework and adding new schedules that replace criminal controls on drug offenders with administrative controls on drug markets.

A second path might involve recognizing rights to use certain drugs in certain contexts.  My book The Constitution of the War on Drugs recounts how a variety of constitutional campaigns against punitive drug laws made headway in prior generations, before ultimately losing out.  In a new paper prepared for the Cornell Law Review symposium on “Revitalizing Freedom of Thought,” Jeremy Kessler and I argue that at least one constitutional door remains open: a First Amendment argument for access to psychedelics based on their capacity to advance “epistemic discovery.”  Many advocates have maintained in recent years that psychedelics ought to be protected under the principle of “cognitive liberty.”  We suggest that the better approach to revitalizing freedom of thought, as well as the most parsimonious account of much of modern free speech doctrine, lies in the principle of epistemic discovery.

The two paths differ in some obvious respects.  Neither the Constitution nor the courts would have much of a role to play in drug scheduling.  By contrast, they would be at the center of any project to expand First Amendment coverage.  The case for scheduling reform is specific to drug policy.  The case for epistemic discovery has broader implications, extending to hot-button topics such as artificial intelligence and digital platform regulation.  What both paths share, however, is a pragmatic orientation that looks to people’s lived experiences to sort drugs into more sensible legal categories, designed to harness their benefits while reducing harms.

Any effort to reimagine drug law might seem like a quixotic project to be pursuing in the time of Trump.  And these particular efforts could of course fall flat.  Yet the current moment may be surprisingly hospitable to broad initiatives in the area, given MAHA’s distrust of the pharmaceutical industry, the Roberts Court’s commitment to First Amendment expansionism, the “psychedelic renaissance” in clinical psychiatry, and the bipartisan interest in curbing the opioid crisis without further fueling mass incarceration.  Against this backdrop, the drug reforms proposed in these papers strike me as politically as well as legally plausible—or, at least, as no less plausible than many other proposals that deserve consideration today.

Enough throat-clearing and self-justification; the work has to speak for itself.  Here is the abstract for the new paper with Kessler:

Epistemic Discovery, Psychedelic Drugs, and the First Amendment

In recent years, the concept of cognitive liberty has drawn support from scholars and activists worldwide.  Proponents of cognitive liberty depict it as extending the right of free thought to encompass a right to “change our brains,” including through the use of psychedelic drugs such as psilocybin, mescaline, and LSD.  Psychedelics, according to countless testimonials, can be doors of perception leading onto new mental landscapes.  Prohibitions on psychedelics are said to infringe the cognitive liberty to open those doors.

This argument helps to illuminate a constitutional blind spot, but its own legal prospects are dim.  In place of cognitive liberty, we propose epistemic discovery as a more promising way to conceptualize the First Amendment interests at stake in policies that indirectly constrain mental freedom.  Epistemic discovery refers to the social and material processes through which humans gain and share knowledge—a pursuit at the heart of modern free speech law.  Whereas cognitive liberty would seem to protect almost any choice to seek a mind-altering experience, no matter how stupefying or stimulating, epistemic discovery allows for more nuanced distinctions.  And whereas cognitive liberty claims do not fit into any established doctrinal framework, epistemic discovery claims could be adjudicated under familiar tests for content-neutral regulations that burden the acquisition or dissemination of information.  Focusing on psychedelics but also touching upon artificial intelligence, digital platforms, and a host of other examples, this Symposium Essay contends that epistemic discovery deserves a central place in First Amendment theory and advocacy.