Why the cops are going soft on pot but politicians are not
Chris Fowlie is the head of the National Organisation for the Reform of Marijuana Laws (NORML) and he really doesn’t like the way the police enforce the Misuse of Drugs Act. In a recent post on The Daily Blog, he argued that the authorities maliciously target harmless dope smokers, causing them far more harm than a joint ever could.
The statistics he cites appear to back up his argument: since 1994 there have been nearly half a million drug arrests, accounting for 11 per cent of all recorded crime. 85 per cent of the arrests were for cannabis, and 87 per cent of those were for personal amounts. On average, that equates to the police arresting 15,800 users a year for possession of personal amounts of pot. That’s 43 a day, or one every 33 minutes.
Fowlie says these statistics “are illustrative of how drug policing in New Zealand has gone off the rails”. But actually, the opposite is true: a closer look at the data shows that in fact there has been a huge decline in police arrests for possession and use over time. In averaging out arrests over two decades, Fowlie focusses on the noise and misses the signal.
In the period between 1994 and 2014, annual recorded offences for possession of all illicit drugs halved. Offences for cannabis possession specifically did likewise. More interestingly, recorded offences for using illicit drugs fell from 1,307 down to 260, which was largely driven by 1,046 fewer cannabis use offences. The Police prosecute significantly fewer people for possession and use of drugs than they did two decades ago.
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And this has occurred at a time when Ministry of Health figures suggest that the prevalence of drugs in New Zealand has remained stable and, particularly in the case of cannabis, relatively high. The data shows that 42 per cent of Kiwis aged 15 and over have smoked pot at some point in their lives, and 11 per cent have smoked pot in the past year. That’s 397,000 past-year tokers. The same survey showed that only two per cent of past year cannabis smokers reported experiencing legal problems as a result of their use.
So why have arrests halved if use has remained the same? There’s a simple answer: the Police are decriminalising cannabis in New Zealand.
Dr. Chris Wilkins is the leader of the illegal drug research team based at Massey University. He first documented the trend toward decriminalisation in 2012 in a paper published in the International Journal of Drug Policy. It concludes that “since the 1990s, there has been a general decline in arrests, prosecutions and convictions for cannabis use in New Zealand.”
The explanation? According to Dr. Wilkins, “the decline in convictions was partly driven by the police diversion scheme, which now includes low-level cannabis use offences.” The diversion scheme, together with the recently introduced Pre-Charge Warning system, allow the police to grant a kind of amnesty to drug offenders whereby they avoid going to court.
According to the Police, the diversion scheme works to deal with offenders in an “out of court” way. The Police Prosecution Service considers whether an offender is eligible for diversion. If their case is deemed worthy, they can admit guilt and take part in a restorative justice exercise. Charges are then dismissed and a conviction is avoided.
A Pre-Charge Warning is a formal warning given after arrest for a comparatively minor offence. This differs from traditional, more informal warnings given in the field, where the offender is not arrested; and the more formal diversion process, which occurs after arrest and a court hearing.
But these schemes don’t explain the decline entirely. It’s not like the Police are catching every pot smoker and then diverting them from the courts—recall that only two per cent of cannabis users reported any legal issues arising from their use. Also, Pre-Charge Warnings are still recorded as offences and appear in published crime statistics.
Another explanation for the decline is that there has been a wider shift in the way that police approach low-level criminal offending. Wilkins says that “it would be a mistake to say it is a change that is specific to drugs. It reflects a wider change in police philosophy.” He believes the trend extends to other low-level crime, such as petty theft, and says the decline in arrests is a case of better allocation of police resources. “There’s a desire to be more effective and efficient, so that means reprioritising low-level offending.”
This is supported by the data. At the same time as possession and use charges for cannabis have come down, the number of manufacture and import charges have increased. The last 20 years have also seen the rise of meth, which Wilkins says has taken up more policing resources.
“If you’re a policeman and you have two markets—meth and cannabis—you have to ask yourself, ‘which is the best use of my time?’”
What’s the official explanation for the decline?
When asked to explain the decline in apprehensions, an official Police spokesperson denied that there had been a change in official drug policy. Instead, he said there had been a change in “focus”.
But calling it a change in “focus” instead of a change in “policy” is just semantics: there’s no meaningful difference. Plus, it’s beside the point—the police are catching half the drug users they used to. They have decided that the hassle of arresting, charging and prosecuting a casual dope smoker is not worth the effort, nor the time, nor the money. They’ve realised the law is an ass, and now refuse to enforce it in the vast majority of cases.
A spokesperson for Police Minister Michael Woodhouse says that the Government didn’t direct the Police to focus less on cannabis. “It is the responsibility of Police to enforce the law. The Minister does not direct police around how they do that, as that is strictly prohibited under the Policing Act.” However, Woodhouse is comfortable with the change: “Police does [sic] embark in alternative resolutions across a number of offences and that is consistent with the Minister’s expectations.”
Is the decline in arrests for possession and use a good thing?
Ross Bell, executive director at the New Zealand Drug Foundation, believes that the decrease is a good thing, saying that “the use of drugs is a health and social issue, not a criminal one.” He says the punishment of a drug conviction isn’t proportionate to the crime, and that it leads to counterproductive health outcomes.
“There are two types of drug user: recreational and dependent. Recreational users aren’t doing any real damage to society so it doesn’t make sense to give them a conviction, especially considering the damage that can do to their future work and travel prospects,” he says. “Dependent users have an addiction, which is a health problem that needs to be dealt with by treatment professionals. Arresting them and then sending them to court (and in some cases jail) can exacerbate their addiction issues, not solve them.”
Encouragingly, Police Commissioner Mike Bush agrees that alternative approaches to prosecution can lead to better outcomes for users. Last month he heaped praise on Auckland Constable Scott Wolfe, “whose empathy for a methamphetamine addict helped turn her life around”.
In a post on his “Commissioner’s Blog”, Bush explained that Constable Wolfe “arrested the woman for possession of a cannabis pipe and, recognising the signs of methamphetamine use, discovered she had a heavy addiction and was living in a car”. Instead of prosecuting the woman through the traditional court system, Constable Wolfe referred her instead to Te Kooti o Timatanga Hou—The New Beginnings Court, which is focussed on homeless and disadvantaged people.
“She’s now in rehabilitation, has reconnected with her child and made huge improvements in her life,” said the Commissioner. “This is a superb example of the difference we can all make by showing a little understanding and using our initiative.” Indeed.
But is there any cause for concern?
Yes, there is. Professor Mark Bennett, a lecturer at Victoria University’s Law School, says that “if a certain offence will not be followed up on and there is little danger of detection and/or prosecution, there are questions around the legitimacy of this from both a rule of law and democratic perspective.”
The police can’t just decide to stop enforcing the laws of the land without there being repercussions. Dr. Dean Knight, another law lecturer at Victoria, says that one of the roles of the police is to follow the democratic will of the people and enforce the laws they voted for. “The Police probably shouldn’t effectively repudiate laws through non-enforcement,” he says.
We might think it’s fine for the Police to decriminalise pot, but what happens if one day they decided to stop prosecuting theft, say? Or assault? Or corruption? This is particularly concerning given the fact that the public is largely unaware of changes in police policy.
We asked Justice Minister Amy Adams whether she shared the law professors’ concerns about democracy and inequality before the law. She told us that the issue wasn’t relevant to her portfolio, which is bizarre. Surely it’s a matter of justice that police are choosing to take the law into their own hands, even if the outcomes are good.
Because sometimes the outcomes aren’t good. A big worry about police discretion is their wide scope to abuse it. Professor Bennett says that independent prosecutorial discretion is a double-edged sword. On the one hand, it means that low-level offending can be kept out of the courts. But the problem, Bennett says, is that it “may be exercised arbitrarily and/or to target certain subgroups of the population”.
What he is saying is that while Constable Wolfe’s actions were commendable, there’s nothing stopping a police officer from throwing the book at another user in the same circumstances. The policy is capricious, because police officers have the power to arbitrarily decide when to enforce the law and when not to. And unfortunately, the people that police do choose to target tend to be minorities. Young people and those living in areas of deprivation are over-represented in the arrest data, but the biggest issue is the apparent targeting of Māori.
That is not to say that all cops are racist—some no doubt are, just as there are racists to be found in every profession. But many officers, while not consciously racist, have biases that they cannot help but act on. And the evidence backs this up: it’s been shown that Māori are proportionally three times more likely to be arrested and convicted for cannabis use than non-Māori.
So is there a way to get the same good outcomes through a better process?
Yes. The most obvious way to get the benefits of decriminalisation is to completely remove the criminal sanction for possession and use of cannabis. That was the conclusion of a 2011 Law Commission report, which recommended scrapping the Misuse of Drugs Act entirely and replacing it with a new law. The key objectives of the new regime would be “to remove minor drug offences from the criminal justice system, and provide greater opportunities for those in need of treatment to access it”.
At the time of the report’s release just prior to the 2011 election, Associate Health Minister Peter Dunne put out an official Government response titled “Next Government will overhaul Misuse of Drugs Act”. In the statement, he said that “the current Act was developed nearly 40 years ago at a time when drugs and their use were very different than they are today, and the argument for a substantive update is clear and compelling.” Four years on, no changes have been been made to the law.
When we asked Minister Dunne whether the Government had any plans to implement the recommendations from the report, he said that any changes to the Misuse of Drugs Act would be made in light of the National Drug Policy due to be released later this year, and not on the Law Commission report. Disappointingly, the Minister didn’t give any reason for his change of heart.
We also asked him whether he agreed that treating possession and use of drugs as a health issue would result in better outcomes for users, and he refused to answer. Which is bizarre, partly because he is the Associate Health Minister, responsible for Government drug policy, and partly because the answer is obviously yes.
So it seems the Government has no appetite to implement full scale drug law reform. But there is an alternative possibility: cannabis could be decriminalised through the Psychoactive Substances Act. Under the regime, psychoactive substances must be proven to be safe before they can be legally sold. Although the law is aimed at synthetic cannabinoid imitators or “legal highs”, Minister Dunne has indicated that there is a “possibility for lower classified drugs” to be tested under the Act, “but that process is likely to be years off yet”.
So politicians aren’t prepared to deal with the issue. But they’re being left behind by a society that is changing the way it views users, and by the Police who are changing the way they treat them. The Police should be commended for implementing an enlightened policy that positively impacts on the lives of users. Politicians should be condemned for sitting on their hands and failing to convert this policy into law.
Cameron Price is one of the founders of the newly-formed Victoria University chapter of Students for Sensible Drug Policy. SSDP is an international student-led organisation that advocates for better drug policies that prioritise human rights. If you’re interested in any aspect of drug law—from plain-packaged cigarettes to alcohol excise tax, medical marijuana to MDMA—join the group. Sign-up at fb.com/vic.ssdp.