War on Drugs or People? Revisiting New Zealand's Drug Laws
BY FIONA WU
In June 1971, US President Richard Nixon declared drug abuse “public enemy number one”, beginning an unprecedented global campaign, ‘the War on Drugs.’ Much of the Western world’s drug laws, including our own, have been influenced to some extent by this campaign. In fact, President Nixon also advocated for devoting more federal resources to the prevention of new addicts and the rehabilitation of those who are addicted, however these policies did not receive anywhere near the public attention as the term “war on drugs”. For most recreational users, illicit drugs will be something they try during a period of youthful indiscretion, not something they become dependent upon. Where strict drug laws hit the hardest are those with chronic addiction, caught in a spiral of personal and legal consequences but who are unable to stop. It is time to take a look at how our drug laws have affected our most vulnerable.
New Zealand Drug Laws
The Misuse of Drugs Act categorises all illicit drugs into Class A, Class B and Class C drugs, depending on their potential to cause harm. Dealing Class A drugs, including heroin, cocaine and methamphetamine, attracts a maximum penalty of life imprisonment. There is a presumption of supply which begins at 5 grams for cocaine and methamphetamine, and half a gram for heroin. Mere possession of these drugs attract a maximum penalty of six months’ imprisonment and/or a $1,000 fine.
Dealing in Class B and Class C drugs attracts maximum penalties of 14 and 8 years, respectively. The presumption of supply begins at 5 grams for both cannabis and the popular party drug MDMA. Mere possession and use of Class B and C drugs attract a prison term of no more than 3 months and/or a fine not exceeding $500.
At its upper levels, our maximum penalties for drug dealing are comparable to those for our most serious crimes – murder and manslaughter. They are more than the maximum someone could receive for being part of a terrorist group (14 years) or for rape (20 years). The validity of the classification system has been called into question, and a Law Commission report of 2011 suggested “the system should be kept under regular review to ensure it remains up-to-date with developing scientific knowledge…it is generally accepted that some of the current classifications…do not reflect available scientific evidence about drug harm.”
This threshold for presumption of supply has faced challenges from groups such as the NZ Drug Foundation, who believe it may unjustly penalise users or addicts who use heavily, but who do not engage in supplying the drug. It also reverses criminal law’s usual burden of proof and puts the onus on the defendant to prove innocence, rather than the prosecution to prove guilt.
Statistics show that around half of all convictions for low-level drug offences are of these under 30, and Maori received 42% of all drug convictions in 2016, despite only making up 15% of the population. This disproportionate criminalisation of Maori has led Maori health organisations Te Rau Ora and Hapai Te Hauora to join the New Zealand Drug Foundation in campaigning for the Government to remove criminal penalties for drug use and possession. Instead, they advocate a health-referral model; double New Zealand’s yearly budget for drug-related prevention, education and treatment and to regulate the legal supply of cannabis. A referendum for the legalisation of cannabis, with a simple yes/no answer, will be before the nation next year.
The strength of New Zealand’s addiction treatment sector has had mixed reviews. While there are excellent outpatient services available, there is a lack of inpatient programmes which is linked to limited Government funding. Johnny Dow, director of Higher Ground Rehabilitation Trust, said DHBs and the Ministry of Health funded excellent local public rehab programmes. However, NZ Drug Foundation executive director, Ross Bell, has said we should be aiming for “zero waiting lists”. There is much evidence to suggest that criminality of drugs adds to the stigma already existing in addiction. A Mental Health and Addictions inquiry in 2018 came to the conclusion that:
“The criminalisation of illicit drugs poses a barrier to seeking help, and convictions for personal drug use have far-reaching consequences on people’s lives. Criminal sanctions for the possession for personal use of controlled drugs should be replaced with civil responses, such as fines or treatment programmes.”
How Do Our Laws Compare with other Countries?
New Zealand’s drug laws are much less draconian compared to the United States, the original birthplace of the war on drugs, with its tradition of harsher sentences, mandatory minimums and sanctions against beneficiaries who fail drug tests. The other common law jurisdictions - Australia, United Kingdom and Canada - have little substantive legislative differences in comparison. The trend across the Western world has been to gradually relax sanctions for personal use and treat addiction as a health issue. However the transition has been slow, and the only country known for its radical stance has been Portugal.
Portugal remains the only country in the world which has, to date, decriminalised every drug, from cannabis to cocaine. The program came about as an experimental response to a debilitating drug epidemic in the late 20th century, with nearly 1% of Portuguese population addicted to heroin. Its most radical elements, however, were not the decriminalisation or the provision of therapeutic treatment - it was the massive investment by the government in funding job creation for addicts, micro loans to encourage start-ups and subsidised employment. The aspiration, it seemed, was for every addict to have a reason to get up in the morning.
By every measure, Portugal’s experiment was a success. In 2009, a report issued by the Cato Institute showed that drug-related mortality rates were down, rates of HIV infections dropped, drug-fuelled crime decreased enormously and the number of people seeking treatment have increased. Portugal’s success should get us thinking.
What Causes Addiction and What Gets People Sober?
The causes of addiction are complex, but the consensus appears to be that it almost always relates to disconnection and inability to be present in one’s life, which leads to the usage of an external substance to self-medicate. Psychologist Bruce Alexander, one of the most pre-eminent researchers of drugs and addiction in the world, said, “Human beings only become addicted when they cannot find anything better to live for and when they desperately need to fill the emptiness.” Indeed, this was why the Portugal experiment was so successful - by integrating addicts into society, this led to a rediscovery of purpose and connection. Addiction is so much more than a matter of willpower.
Viewed against this background, it is easy to see why conventional, sanctimonious laws have not worked. Instead of helping addicts integrate, incarceration, punishment and stigma have further cast them away from society. As journalist and author Johann Hari puts it, “We put people who are not well in a situation that makes them feel worse and then hate them for not recovering.”
The answer is not necessarily for every country to follow Portugal’s example of decriminalising all drugs. There are a myriad of directions the law can take, from moving towards reduced penalization for personal use, to becoming a mechanism to redirect people towards treatment options. It may be that more funding is invested towards early prevention and rehabilitation and it may be that the presumption of supply is removed and replaced with aggravated possession. There isn’t a singular solution - what we can start to do is think about addiction differently.
Addictions are not victimless, nor do they only hurt the individual. More than two thirds of criminal offending are related to some form of substance misuse, to say nothing of its effects on workplace productivity, healthcare costs and family dynamics. It would benefit the whole country to have policy instruments which tackle the root causes of the issue, especially given the consequences of methamphetamine misuse in NZ in recent years.
As always, it is important to recognise the context in which our laws started. The War on Drugs began with the explicit assumption that punishment and shame would be the incentives addicts need to stop. Since then, our understanding has progressively shifted to viewing addiction as a disease - a theory widely supported by contemporary medical evidence. It has been forty years since Nixon’s speech, and it may be time for our laws to keep up.
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