The past fifty years have witnessed considerable debate among policy makers over the legal status of hallucinogens, although that debate has yet to reach a clear resolution. Five decades of illicit hallucinogen use by millions of Americans, coupled with legitimate scientific research, have prompted many people to challenge government claims that hallucinogens represent a serious health risk to individuals and to the nation in general. At the heart of this disagreement are the standards that since 1970 have been used to classify certain drugs as illicit while others are listed as legal.

The DEA and Drug Classifications

In 1970, Congress authorized the Food and Drug Administration (FDA) to study all drugs, both licit and illicit, to determine which are potentially dangerous and should be strictly regulated as controlled substances. The Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, is the legal foundation of the government’s fight against the abuse of drugs and other substances. This law is a consolidation of numerous laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and certain chemicals that can be used in the illicit production of controlled substances.

If the FDA believes that a specific drug constitutes a potential danger to the public, it places it on the controlled substance list and then notifies the DEA of its decision. The DEA, in turn, determines which of five illicit drug categories, called schedules, is appropriate for the drug. Each schedule specifies different conditions under which a drug can be legally used.

The schedule to which the DEA assigns a drug is determined by whether or not the drug has legitimate medical value and by its potential danger if it is misused by the public. Schedule I is the most restrictive category and Schedule V the least restrictive. Schedule I is reserved for those drugs that have a high potential for abuse, that have no accepted medical value, and that are not considered safe for use even under medical supervision. Because of these criteria, most hallucinogens are Schedule I drugs, as are heroin, cocaine, crack, opium, methamphetamine, and a few others.

The only legal use of a Schedule I drug is for tightly controlled medical and scientific research. The DEA allows legitimate researchers and doctors to apply for licenses to possess Schedule I drugs, but the number of such licenses is extremely small. The DEA has approved about one thousand licenses for physicians and drug companies to handle this class of drugs.

The DEA provides two explanations for why most hallucinogens, which the DEA recognizes are nonaddictive, are grouped with such highly addictive drugs as heroin, cocaine, crack, opium, and methamphetamine. The first reason is that, at the time the Controlled Substances Act was passed and the drug schedules devised, the FDA had already banned their use entirely because no research had yet been conducted to determine the potential danger of hallucinogens. As a result of their unknown potential dangers, when the drug schedules were established in the early 1970s, hallucinogens were added to the Schedule I drugs, and they have remained there ever since.

The second reason hallucinogens are Schedule I drugs, articulated by General Barry McCaffrey, the drug policy adviser, or “drug czar,” under President Bill Clinton, is that hallucinogens are “gateway” drugs whose use may lead to experimentation with harder drugs. As gateway drugs, General McCaffrey reasons, if hallucinogens are kept off the streets, there is a reduced likelihood that users will move on to the more dangerous addictive Schedule I drugs.

The Alcohol Exclusion

The exclusion of alcohol from the DEA’s schedule of controlled substances has been widely criticized. Those who support legalizing hallucinogens wonder why drugs they feel are less harmful than alcohol remain on the DEA schedule of controlled substances. The DEA is aware of this inconsistency, but it still opposes the legalization of hallucinogens because it believes alcohol has created many problems in the United States and legalizing drugs would only add to the situation.

Many responsible citizen organizations, however, disagree with the DEA. An independent study of licit and illicit drugs performed by the Consumer Union Report concludes, “Until people are willing to enforce alcohol prohibition,… they are simply wasting their efforts in trying to enforce heroin prohibition, marijuana prohibition, and other drug prohibitions.”

According to William Bennett, the “drug czar” for President George H. Bush, in a speech at Harvard University, “We should admit that legalized alcohol,

which is responsible for some 100,000 deaths a year, is hardly a model for drug policy.” This number of deaths, however, is considered low by some health agencies. According to the National Institute on Alcohol and Alcohol Abuse, roughly 200,000 deaths a year are caused by alcohol-related diseases, and another 16,000 are due to alcohol related auto accidents.

Four Drug Policy Models

Rethinking the Classification of Hallucinogens

Peyote, American Indians, and the Law

One hallucinogen already has the unique status of being legally used under one specific circumstance: peyote. The Justice Department has made this one exception to accommodate a claim that peyote is a necessary part of a religious ritual.

Peyote has been a part of the religious ceremonies for several American Indian tribes for many generations. During the 1930s, when states passed laws prohibiting the use of peyote, members of the Native American Church, who had been using peyote in their religious ceremonies, protested the prohibitions. They fought the peyote prohibition in the courts, citing their rights to religious freedom and religious practices as guaranteed under the First and Fourteenth Amendments to the U.S. Constitution.

Attorneys arguing before the Albuquerque District Court on behalf of the Native American Church pointed out that, for hundreds of years, peyote had been viewed as a natural gift of God to humankind, and especially to natives of the land where it grows. They argued that no government has a right to tamper with traditional religious rituals.

In 1960, the Albuquerque District Court ruled in favor of the Native American Church, allowing them to legally use peyote as part of their religious ceremonies. Peyote remains on the DEA’s list of Schedule I drugs; however, this prohibition does not apply to bona fide religious ceremonies of the Native American Church. Controls over peyote use are still closely regulated, and any person who prepares peyote or distributes peyote to the Native American Church is required to obtain annual registration from the DEA and to comply with all other requirements of the law.

Problems of Law Enforcement

Government Responsibilities vs. Individual Rights

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