Edmund Murphy
Morgan Blair, MA, LPC
Barine Majewska
Jeff Fitzgerald
The second decade of the 21st century has seen the first steps of legislative reform on psychedelic drug policy in the United States. In 2020, Oregon became the first state to legalize psilocybin for “personal development” for those over the age of 21 and to decriminalize the personal possession of certain substances. Colorado followed suit in 2022 when voters passed Proposition 122, making possession of certain naturally occurring and plant-based psychedelics legal. This legislative progress was not easily fought and won for either state, with various bills being rejected and amended for years before a successful vote was secured. (1) (2)
This can be challenging for citizens to track and understand, as what’s key here is that these measures were passed at the state level. Jurisdictions like cities or states sometimes take their own legislative action when the federal government or health agencies don’t make access to these substances available to its citizens.
What’s the Difference Between the Legalization and Decriminalization of Psychedelics?
Decriminalization means that while the substance remains illegal, an individual will receive no, or reduced, criminal charges for its possession or use. Personal use or possession of small amounts of psychedelics would, therefore, result in no criminal record or jail time being given. Producing or selling decriminalized substances would typically still result in criminal charges. (3) (4)
However, depending on state or local legislation, civil penalties could be given for possession or use. This could mean that the individual receives a fine or is referred to drug education or treatment services. (5)
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In contrast, legalization means that there are no penalties, criminal or civil, for the use or possession of a substance and that businesses or individuals can produce, sell, and use substances with no legal prohibition. (4)
Legalization of a substance usually involves controlling its production and sale, with potential legal consequences if regulations are not followed. Regulations might include age limits or specified restrictions on where the substance can be sold or consumed. For example, alcohol and tobacco are legal drugs, with regulations relating to the consumer’s age and place of use. (6)
Essentially, decriminalization of psychedelics most often means that individuals could use and possess small amounts of these substances with no risk of significant criminal penalties. Legalization of psychedelics means that the substances can be produced, sold, and used under regulations, with no risk of criminal or civil charges.
Paths to Psychedelics Legalization: Federal vs. State vs. FDA
Substance decriminalization and legalization can take place through various pathways. These can sometimes contradict one another, complicating legal frameworks and the medicinal or commercial use of psychedelics. (5) (7)
State
In individual states, or even cities within states, jurisdictions can create their own laws about substance use. For example, various states and cities have decriminalized many psychedelics, while Oregon and Colorado have legalized the use of psilocybin in certain state regulated treatment or healing centers. (8)
The state can pass a bill or use a ballot to enact legislation. Once this law is created, regulations are put in place alongside state laws to ensure safety, which are usually developed and overseen by a governing body or advisory board. (6) (4)
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However, state laws have no impact on federal laws, which continue to state that psychedelics are Schedule I controlled substances. Similarly, state laws can be made without requiring the FDA approval that the federal government usually requires to determine the safe use of a substance. (8) (9)
Federal
Federal laws are those that impact the whole of the United States, including those written in the Controlled Substances Act, which lists psychedelics as Schedule I substances. While state laws can protect individuals from criminal prosecution at the state level, federal laws take precedence and can be enforced if the federal government chooses to enforce them. (8) (7)
To fully legalize psychedelics across the U.S., federal laws would need to change with a reclassification of these substances. After the Controlled Substances Act was enacted by Congress in 1970, the power to change these classifications was handed to the DEA and FDA. (8) (10)
Federal reform and reclassification of all psychedelics is not guaranteed, although it is theorized that most states may legalize psychedelics by 2033. This theory is based on legislation changes seen with cannabis over recent years. Cannabis is now legalized for medicinal use in 38 states. However, despite petitions and attempts at reclassification, it remains a Schedule I controlled substance. (6) (9)
FDA
Often, before the public can use a drug, it must be approved by the U.S. Food and Drug Administration (FDA). The drug must undergo rigorous testing to be approved, proving positive outcomes in Phase I, II, and III trials. (8) (10)
For example, in 2018, the FDA approved psilocybin as a breakthrough therapy, allowing it to be used in research and clinical trials, with the potential for approval upon completion. (8)
If and when these trials are successful and prove medicinal or beneficial purposes, the FDA can approve the drug, and manufacturers can apply to the DEA for reclassification. However, in some cases, a treatment will be approved by the FDA but not reclassified, therefore remaining illegal and inaccessible as a medicinal treatment. (7) (11)
States Where Psychedelics Have Been Decriminalized or Partially Legalized
Oregon
Oregon became the first in the United States to allow legal access to psilocybin for personal development and decriminalize possession and use of small amounts of drugs including psilocybin in November 2020. Measure 109, The Oregon Psilocybin Services Act directs the Oregon Health Authority (OHA) to regulate and license psilocybin and psilocybin services. This direction includes licensing and regulating the manufacture, delivery, sale, and purchase of psilocybin. (12)
The Oregon Psilocybin Advisory Board worked with the OHA during a two-year development period (Jan 2021 – Dec 2022) to ensure that all rules and regulations pertaining to the implementation of Measure 109 and the effective delivery of psilocybin services. Currently, psilocybin services are only accessible through licensed treatment centers, which are few and far between, meaning obtaining psilocybin through legal means is still difficult. (13)
Measure 110, the Drug Addiction Treatment and Recovery Act, went into effect on February 1st, 2021, reclassifying possession of small amounts of psychedelic substances (including psilocybin, MDMA, and ketamine) as a civil violation incurring a $100 fine or agreement to seek treatment. Felony possession was reduced to a misdemeanor (outside of commercial trafficking quantities), and treatment centers are funded by marijuana tax revenue. In May 2023, bill SB 303 was passed, allowing for aggregate data from psilocybin treatment centers to be made available to Oregon Health Authority and Oregon Health and Science University as well as being made public. In February 2024, House Bill 4002 was passed by the Oregon Legislature. It reverts portions of key features of Measure 110, and re-criminalizes possession of small amounts of drugs. (14) (15) (16) (17) (18)
Colorado
On November 8th, 2022, Colorado voters passed Proposition 122, making it the second state in the U.S. to create a regulated access program for psychedelics. Notably, Proposition 122 also created a novel Personal Use system, in addition to the regulated access program. (21, 22, 23, 24)
In May of 2023, the Colorado Legislature passed SB23-290, the formal implementation bill for Proposition 122. SB23-290 largely, but not completely, honored the intention of Proposition 122 as it built a full policy framework.
With regard to the regulatory framework created to oversee a regulated market of natural medicine and natural medicine products, Proposition 122 established the Natural Medicine Advisory Board to advise Colorado regulators on the creation of “healing centers” that are regulated by state agencies.. The regulators are required under SB23-290 to create the rules that will govern regulated natural medicine, natural medicine products, and natural medicine services. This will allow individuals over the age of 21 the freedom to obtain “natural medicines” (psilocybin, psilocin) at state licensed healing centers. The Department of Regulatory Agencies and the Department of Revenue are working towards their deadline of September 2024 to establish all rules necessary for the implementation of the natural medicine access program. The first type of applications for licenses pursuant to the regulated natural medicine program are open as of July 2024, with the bulk of license applications opening at the end of the year.
In contrast to the regulated natural medicine access program, the Personal Use section of SB23-290 decriminalized the personal use of natural medicine, including the consumption, use, cultivation, and manufacture of natural medicine and natural medicine products, including psilocybin, psilocin, ibogaine, dimethyltryptamine (DMT), and mescaline (excluding peyote) by people over the age of 21. It also decriminalized the sharing of natural medicine for personal use without compensation provided it is not part of a business promotion or commercial activity – it did not decriminalize sales of any natural medicine. SB23-290 also decriminalized ceremonial use of natural medicine, and the sharing of natural medicine concurrently with bona fide harm reduction or support services where the services provider can receive remuneration for their time, provided there is no advertising and proper disclosures were made. (25)
Many other bills have been filed between 2019 and 2024 which have been tabled indefinitely or incorporated into Proposition 122. Bill HB 22-1344 relates to a synthetic substance with beneficial properties. HB 22-1344 relates to 3,4-methylenedioxymethamphetamine (MDMA) and states that if the FDA approves a medication containing MDMA that is not a Schedule I substance, then that medication will be legal in Colorado for MDMA-assisted therapy. Governor Jared Polis signed HB 22-1344 into law in June 2022. In 2024, the state introduced and passed Senate Bill 24-198, which became effective in June. In addition to clarifying parts of SB 23-290, SB 24-198 amended the law to clearly permit independent facilitator practice, as well as allow co-location of cannabis and natural medicine testing facilities. (26) (27)
California
The California counties of Eureka, Arcata, Oakland, Santa Cruz, Berkeley, and San Francisco have all made the possession of psilocybin, psilocin, dimethyltryptamine (DMT), ibogaine, and mescaline (but not peyote) the lowest priority for law enforcement, though decriminalization is not state-wide. This means that in these counties, being caught in possession of the above substances will not lead to legal action or a criminal sentence for the first offense. Further offenses may lead to fines and prosecution. (28)
Senate Bill 58 would have legalized psilocybin, psilocin, dimethyltryptamine (DMT), ibogaine, and mescaline (excluding peyote) for personal, facilitated, or supported use by persons 21 years old or older. The bill was vetoed by Governor Gavin Newsom in October 2023, citing a lack of infrastructure and planning for psychedelic treatment. In response, the bill’s author introduced SB 1012 in 2024. In addition to an increased focus on regulated psychedelic-assisted therapy, SB 1012 differs from SB 58 by removing ibogaine and adding MDMA to the proposed framework. (29) (30)
Connecticut
In June 2021, Connecticut signed Senate Bill 1083 into law, which permitted the Department of Mental Health and Addiction Services to study the potential medical use of psilocybin for therapeutic purposes. House Bill 6734 was introduced in 2023, decriminalizing small amounts of psilocybin (less than half an ounce) for those 21 or over but did not manage to pass both chambers before the legislative session expired. The bill was reintroduced in February 2024 as HB 59277 and is currently working its way through the legislative process with a possible effective date of October 1, 2024. (27) (18) (31)
Hawaii
In March 2023, HB1340 and SB1531 were introduced and were recommended by the Health and Human Services Committee. The bills aimed to “establish the beneficial treatments advisory council to review, evaluate, and recommend new medicinal treatments” for MDMA and psilocybin. HB1340 did not advance, while SB1531 was carried over to the 2024 legislative session and is now pending in the House Health Committee. A separate bill, SCR69, was also introduced in March in support of the previous two with plans to ensure the accessibility of therapeutic psilocybin and MDMA for those over 21, but was deferred by the Health and Human Services Committee.
In August of 2023, Hawaii’s Office of Wellness and Resilience the established the Breakthrough Therapies Task Force.The task force helped inform a pair of bills introduced in 2024, SB3019 and HB2630, which would create a stripped-back version of the fully state-regulated Oregon and Colorado models. Under the proposed system, medical professionals would be able to recommend therapeutic use of psilocybin for certain conditions. The state would oversee the licensing of facilitators, who would conduct preparation, administration, and integration sessions. Qualifying patients, and their primary caregivers, may claim therapeutic use as an affirmative defense against psilocybin-related prosecutions. Interestingly, the state would not license or oversee cultivation, production, or testing of psilocybin. Essentially, the proposed system protects possession and use of psilocybin under certain conditions, while keeping the role of the state to a minimum. Falsely claiming the defense would result in a fine of $500. Both bills are currently pending in committee. (32) (33) (34) (35) (36) (37) (38) (39) (40)
Maine
Multiple legislative acts have been proposed and rejected for access to psilocybin and psilocybin-assisted therapy in recent years. However, The City of Portland Public Health and Human Services and Public Safety Committee advanced a resolution to decriminalize natural psychedelics (psilocybin, psilocin, ibogaine, mescaline – with the exception of peyote – and DMT), which passed in October 2023. The act, which allows for cultivation and use but not distribution of natural psychedelics, makes Portland the first city in Maine to decriminalize psychedelics. In April of 2024, Maine’s legislature approved the creation of a “Commission to Study Pathways for Creating a Psilocybin Services Program,” in an amended version of a 2023 bill that would have created a fully state-regulated psychedelics program. The 13-member Commission will review current research on psychedelics and develop potential plans for Maine to establish its own regulatory framework. The Commission must report its findings to the legislature by November 6, 2024. (41) (42) (43)
Maryland
The Maryland General Assembly is currently considering bills that would decriminalize the possession of several psychedelics. SB 709 took effect on July 1, 2022, calling for a state fund to study effectiveness and provide “cost-free” access to psychedelics like psilocybin, MDMA, and ketamine for military veterans suffering from PTSD and traumatic brain injuries. $1 million was appropriated to the fund for the 2024 fiscal year, and the Maryland Department of Health (“MDH”) has begun issuing Requests for Proposals to conduct the required studies. MDH must report any findings or recommendations from the funded studies by December 1, 2024. Several other bills are currently being reviewed that would lower penalties for possession of psychedelics to a minor fee. Nearly two years after SB 709 took effect, Maryland passed SB 1009 and HB 0548, creating a “Task Force on Responsible Use of Natural Psychedelic Substances.” Similar to bills in other states, the Task Force will study natural psychedelics and make recommendations to the state regarding legalization and regulation. The MarylandTask Force must make its report by July 31, 2025. (44) (45) (46) (47) (48) (49) (50)
Massachusetts
The cities of Amherst, Salem, Somerville, Cambridge, Northampton, Easthampton, Medford, and Provincetown have decriminalized or deprioritized personal possession of entheogenic plants, which includes psilocybin, psilocin, mescaline, DMT and ibogaine. Further legislation has been introduced to decriminalize psychedelic possession statewide. Massachusetts for Mental Health Options submitted paperwork in August 2023 for a ballot to decriminalize possession and to allow for psychedelic services. The ballot measure, titled “The Natural Psychedelic Substances Act,” reached the required 75,000 signatures needed to be considered in 2024. (51) (52) (53) (54)
Michigan
In the cities of Ann Arbor, Detroit, Ferndale, Hazel Park, Ypsilanti, and Washtenaw County, possession and personal use of natural psychedelics (magic mushrooms, ayahuasca, and mescaline) have been made the lowest law enforcement priority. Similar to Maryland, the Michigan State House introduced resolution No. 5 that called for non-technological treatments for mental health issues in veterans (such as buddy-to-buddy programs, controlled use of psychedelics in clinical settings, outdoor therapy, and easier access to service animals). This included the use of psychedelics such as MDMA, which has shown promise for treating PTSD. In September 2023, Senator Jeff Irwin backed SB449, which calls for the legalization of the use, cultivation, manufacturing, and delivery of natural psychedelics. (55) (56) (57) (58)
Minnesota
Via executive order, Minneapolis has made entheogenic indolamines, tryptamines, and phenethylamines, including psilocybin, ayahuasca, mescaline and iboga, the lowest law enforcement priority. In 2023, the state established a “Psychedelic Medicine Task Force.” The 23-member task force published an initial report on February 1, 2024, with an additional report due by January 1, 2025. (59) (60)
New Jersey
Senate Bill S3256, which passed in February 2021, reduced penalties for possession of psilocybin. Before the bill passed, possession of any amount of psilocybin was punishable by three to five years in prison and a fine of up to $35,000. Since SB S3256 passed, the maximum penalty is up to six months and a $1,000 fine. In June 2022, Bill S2934 was introduced under the title “The Psilocybin Behavioral Health Access and Services Act,” which would have authorized the production and use of psilocybin as well as expunging prior convictions. The act did not pass in 2022, but was reintroduced in 2024 as S2283. As of June 6th, the latest version is pending in committee. (61) (18) (62)
Texas
House Bill HB1802 became law in June 2021 and calls for the Department of State Health Services to conduct a study into the therapeutic efficacy of MDMA, psilocybin, and ketamine as alternative treatments for certain mental health conditions, including depression and PTSD. Similar bills were introduced in March 2023, calling for a psychedelics research council and studies into psilocybin, MDMA, and ketamine as treatments for neurological disorders, PTSD in veterans, and other psychiatric disorders. To date no psychedelic reform has passed in Texas, however there are currently three bills pending committee, all of which relate to research or investigative efforts. (63) (64) (65) (66) (67)
Virginia
Two bills were introduced in January 2023, House Bill HB 1513 and Senate Bill SB 932, to reform Virginia’s penalization of psilocybin possession and use, and to advance psilocybin research. HB 1513 would allow the possession of psilocybin with a valid prescription for the treatment of depression, PTSD, and end-of-life anxiety. The bill prohibits the prosecution of health care practitioners or pharmacists for dispensing or distributing psilocybin for such purposes. The bill also makes possession of psilocybin without a valid prescription a Class 2 misdemeanor punishable by no longer than 30 days in jail and no more than a $500 fine, either or both. The bill makes a second or subsequent offense a Class 1 misdemeanor.
SB 932, which the Senate passed in February 2023, establishes the Virginia Psilocybin Advisory Board to develop plans for the establishment of therapeutic access to psilocybin. The bill also re-schedules psilocybin from a Schedule I to a Schedule III controlled substance under state law. As of June 2024 the advisory council has yet to be appointed. (68) (69)
Washington
In January 2022, the Psilocybin Wellness and Opportunity Act was introduced as SB 5660. Similar to Oregon’s Psilocybin Services Act, SB 5660 would allow legal access to psilocybin support services for those over the age of 21. The bill failed, but persistence and amendments led to SB 5263 being passed by the Senate in January 2023. (70) (71)
SB 5693 would call on the Department of Health to administer a regulatory system for the adult use of psilocybin by creating standards for manufacturing, testing, packaging, and labeling psilocybin products with the assistance of a Psilocybin Advisory Board. The governor vetoed significant portions of SB 5263, but left in place a “psilocybin therapy services pilot program” to be created at the University of Washington. (72) (73)
What Psychedelics are Decriminalized in the United States?
As mentioned above, in recent years, several states have begun loosening the laws and criminal prosecution of psychedelic use. Most of the cities and states in which these changes have been made have decriminalized the use of common entheogens, including psilocybin, ibogaine, mescaline, and DMT (dimethyltryptamine). (73) (74) (75)
Psilocybin
Psilocybin is the hallucinogenic substance found in “magic” mushrooms. It has been used for spiritual, medicinal, and religious purposes for thousands of years by communities across the globe. The medicinal benefits of psilocybin are becoming increasingly recognized and accepted in the modern Western world due to recent studies and trials. (73, 74, 75, 76)
Psilocybin has been decriminalized in:
Oregon
Legalized for supervised therapeutic use in adults.
Colorado
Legalized for supervised therapeutic use in adults.
Certain cities and counties in California:
Santa Cruz, Berkeley, Oakland, San Francisco, Arcata
Certain cities and counties in Washington
Port Townsend, Seattle, Jefferson County
Certain cities and counties in Massachusetts
Cambridge, Northampton, Easthampton, Somerville.
Certain cities and counties in Michigan
Ferndale, Ann Arbor, Detroit, Hazel Park, Washtenaw County.
Minnesota
Minneapolis only
Washington DC
Mescaline
Mescaline is a psychedelic substance found in the peyote and San Pedro cacti. Indigenous communities have used peyote in religious and spiritual ceremonies for millennia. It is important to note that while some cities and counties have decriminalized mescaline, peyote cultivation, possession, and distribution remain illegal in those areas,due to its vulnerable ecological status and cultural significance to Native American populations. Although it remains illegal by federal laws, members of the Native American Church (NAC) are given religious freedom to utilize the peyote cactus. (73, 74, 75, 77)
Mescaline is decriminalized or carries reduced penalties in:
Colorado
Certain counties in California:
Santa Cruz, Berkeley, Oakland, San Francisco, Arcata
Certain counties in Washington
Port Townsend, Seattle, Jefferson County
Certain counties in Massachusetts
Cambridge, Northampton, Easthampton, Somerville.
Certain counties in Michigan
Ferndale, Ann Arbor, Detroit, Hazel Park, Washtenaw County.
Minnesota
Minneapolis only
Washington DC
Ayahuasca
Ayahuasca is a brew most commonly made from combining stems of the Banisteriopsis caapi vine and the leaves of the Psychotria viridis, which contains the psychoactive substance N,N-Dimethyltryptamine (DMT). DMT would on its own be inactive when consumed orally, but the Banisteriopsis caapi vine contains monoamine oxidase inhibitors which allow the DMT in the Psychotria viridis to evade metabolism in the GI tract and liver, and have effect in the brain. Ayahuasca has been used in spiritual and religious ceremonies for thousands of years. The name “ayahuasca” is the name most commonly used in Peru, Bolivia, Ecuador and Brazil, but many other South American communities brew similar psychedelic drinks using DMT and in some cases other psychoactive substances under different names. Recognized religious groups across the U.S. have the freedom to utilize ayahuasca without prosecution. Isolated and synthetic or extracted DMT can also be used on its own, most commonly smoked or vaporized although it is more heavily restricted and often does not have the same religious or cultural significance. (73, 74, 75, 78)
Ayahuasca is decriminalized or carries reduced penalties in:
Colorado
Certain counties in California:
Santa Cruz, Berkeley, Oakland, San Francisco, Arcata
Certain counties in Washington:
Port Townsend, Seattle, Jefferson County
Certain counties in Massachusetts:
Cambridge, Northampton, Easthampton, Somerville.
Certain counties in Michigan:
Ferndale, Ann Arbor, Detroit, Hazel Park, Washtenaw County.
Minnesota
Minneapolis only
Washington DC
Ibogaine
Ibogaine is a naturally occurring psychoactive substance found in the root bark of the African shrub Tabernanthe iboga. It has been traditionally used in ceremonial rituals by the Bwiti people of West Africa. In modern times, ibogaine has gained attention for its potential to treat addiction and craving, particularly to opioids but also potentially to alcohol, cocaine, methamphetamine, and nicotine. It works by interrupting addiction pathways in the brain, reducing withdrawal symptoms, and diminishing cravings. Despite its promise, ibogaine is not without risks, including serious cardiac complications, and its use remains controversial and largely unregulated. Research into its efficacy and safety is ongoing, with some countries offering ibogaine therapy in clinical settings. (73, 74, 75, 79)
Ibogaine has been decriminalized or carries reduced penalties in:
Colorado
Minneapolis only
Certain counties in California:
Santa Cruz, Berkeley, Oakland, San Francisco, Arcata
Certain counties in Washington:
Port Townsend, Seattle, Jefferson County
Certain counties in Massachusetts:
Cambridge, Northampton, Easthampton, Somerville.
Minnesota
Minneapolis only
Washington DC
What U.S. States Are Considering Psychedelics as an Alternative Treatment for Mental Health?
As mentioned, some US states, such as Colorado and Oregon, have legalized the supervised medicinal use of psychedelics in therapeutic settings or healing centers. (81) (82)
Following this, various other states have proposed bills pertaining to the decriminalization or legalization of psychedelics, with many focusing on their use as mental health treatments. This includes: (81) (82) (83) (9)
Arizona
The state Senate passed a bill in 2023 to fund research into the therapeutic use of psilocybin for PTSD, depression, and addiction, and to develop a psilocybin research advisory council. Additional bills have been introduced in 2024 to further fund psilocybin and MDMA research for certain conditions and populations. (83, 86, 87)
Indiana
In January 2024, SB 139 was introduced to establish the “therapeutic psilocybin research fund,” which would provide financial assistance to state institutions for research into psilocybin therapy. (89)
Missouri
A bill proposed in 2023 would allow individuals with PTSD, treatment-resistant depression, or substance use disorders to access psilocybin therapy under medical supervision. Bills introduced in 2024 would allocate three million dollars in research grants for the study of psilocybin therapy for several mental health conditions. (83, 49)
New Mexico
On February 14, 2024, SM 12, requesting the Department of Health to study psilocybin as a potential solution to overdose, was signed into law by the governor. (90)
New York
Since 2021, bills have been proposed to decriminalize psychedelics and allow research and access to psilocybin-assisted therapy. A new bill aims to establish a public psychedelic research center and allocate funds for using psilocybin to treat veterans and first responders. Bills introduced in late 2023 would establish a limited psilocybin-assisted therapy pilot program for veterans and first responders. (91, 92)
North Carolina
In 2023, a bill was introduced to fund research projects into the medicinal uses of psilocybin and MDMA as a treatment for PTSD, depression, and anxiety disorders. (95)
Sources
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15. Repeals Drug Addiction Treatment and Recovery Act of 2020 (Ballot Measure 110 (2020)) and provisions related to decriminalization of possession of drugs, creation of Oversight and Accountability Council and grants and funding for Behavioral Health Resource Networks to provide drug treatment. HB 2831. (2023). https://gov.oregonlive.com/bill/2023/HB2831/
16. Relating to possession of controlled substances. HB 3549. (2023). https://openstates.org/or/bills/2023R1/HB3549/
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Nick Hilden
Sam Woolfe
David Connell
Ben “Doc” Askins
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Jason Foster
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