The war on drugs is unjust. Photo: Getty Images.

How cannabis legalisation will help balance justice’s racist scales

With the 2020 cannabis referendum fast approaching, New Zealanders have a unique opportunity to let the government know what they want from drug reform. It will then be up to our policy makers to decide whether drug reform will focus on changing outcomes for those struggling under historically racist policy.

By the time Tricia Walsh was 13, she estimates that more than 50 men had abused her. After suffering violence at the hands of her mother throughout her childhood, she turned to gangs as her support, but here, the cycle of abuse only continued. Drugs became her escape from the painful, violent reality of her life. A mother at 15, Walsh was lost, confused and in abusive relationships with the people closest to her, and her drug use led to multiple stints in prison. Her last sentence finished in 2008, when she was 42.

The trauma Walsh suffered at the hands of people she should have been able to trust led her to drugs, and drugs led her into a system that was punitive and apathetic. But her life, and so many lives like hers, could have been so different if she’d received the treatment she needed sooner.

Now an anti-P campaigner, a proud mum and a grandmother, Walsh has turned her life to fighting a system that took hers away. She says without drug law reform so many others, especially young wahine Māori, will get stuck in the same harmful cycles of trauma, drug use and prison.

“There’s a whakapapa, a history to why people end up using drugs, and end up in the justice system. My history has been one based on trauma, and because of that trauma there was a progression based around not wanting to face each day.”

Tricia Walsh, left, speaks at the Parliamentary Drug Symposium in September. Photo: Natalie Bould, NZ Drug Foundation.

In 2020, New Zealand voters will get to have their say on the legalisation of recreational personal use of cannabis, in a referendum alongside the general election. This referendum is a crucial step towards justice and away from a regulatory framework designed for the “war on drugs” philosophy that has been the basis of New Zealand drug policy for decades. 

The Nixonian approach to drugs that informed our own laws here in New Zealand is widely perceived as a failure. In New Zealand it’s disproportionately targetted, prosecuted and imprisoned Māori. People who need help have been put in jail. It’s cost the justice system millions of dollars. The long term consequences are devastating. 

For Walsh, one of the most important outcomes from drug reform would be a better understanding – by all parts of the justice system, from police officers to judges – of the role of trauma in offending. She wonders what difference it would have made to her life if there had been easily accessible addiction and trauma treatments available before she found herself in prison.

“You have kids who’ve been sexually abused, beaten, mistreated, and they’re either left where they are or they’re picked up and placed with someone else who only sees the problems, they don’t see the journey. If we don’t acknowledge the journey then we’re not actually creating a fair and just starting point for the healing to take place.”

The current justice system focuses on punishment first, rehabilitation second. It’s not enough, she argues, to have psychologists assess offenders once they’re already locked up. It’s often too late. 

“It’s about punishment. It doesn’t allow for change. To access rehabilitation services – they’re not readily available on the outside – you have to be in jail already, and those services are available at certain points in your period of imprisonment, which is usually the end, and even then the service doesn’t always meet the needs of the person.”

Punitive not rehabilitative drug policy

Tuari Potiki, the chair of the New Zealand Drug Foundation and University of Otago director of Māori Development, has witnessed the effect prison has on Māori communities. For five years he worked as a Māori alcohol and drug clinician in a number of prisons in Christchurch. His experience in prisons has led him to agree that the system is heavily skewed towards punitive rather than preventative justice – and that means the people who need help most often get the least.

“For a while there were more treatment beds for alcohol and drug problems in prison than there were out of jail,” he says. “The prisons had 500 beds available, and even that’s laughable because they say that between 80 and 90% of prisoners have, in their lifetime, been alcohol or drug dependent, and there’s over 5000 of them, so at the most those beds are going to take care of 10% of the population who might need help in prison. 

“The current alcohol and drug system needs to change its attitude a bit. There are some services who won’t deal with prisoners, people on remand or people on court order, which is rubbish. If someone needs help they need help.”

Tuari Potiki. Photo: Supplied.

He believes legalisation of cannabis is the starting point in a much larger systemic overhaul that needs to happen in the justice system. It’s an opportunity to acknowledge publicly that what we’ve got isn’t working, and that we must try something else.

“People acknowledge that the system is broken but they use different language, so they talk about unconscious bias, or that there’s a ‘skew’ in the statistics. It’s not unconscious. The whole system needs to be gone over with a fine tooth comb, and at every single stage there needs to be some change.

“We all know the stats around Māori being more likely to be stopped, arrested, prosecuted, and there needs to be someone looking across all of that stuff and pointing out what’s happening and saying ‘this isn’t okay’.”

If the law is to change it can’t happen in a vacuum. The various agencies that will be affected by the legislative change need to be engaged in the transition. To help break the cycle of trauma that often leads generations of families down the same destructive paths there will need to be change in how drug users are treated, and that means easier access to help when people need it. 

Cannabis was completely outlawed in New Zealand in 1965 as part of a global trend to prohibition. But it’s estimated that over 450,000 New Zealanders still use it in any given year. As the world saw in the 1920s with alcohol prohibition in the US, just because a substance is prohibited, doesn’t mean supply will stop. It just becomes deregulated, much more dangerous, more costly to police, and it places the money in the hands of gangs and other black market traders. This is what’s currently happening with the illegal cannabis market in New Zealand.

A report by the Helen Clark Foundation outlining “the case for yes” in next year’s referendum outlined the heavy reliance on police discretion in our current drug laws, and how this disproportionately affects Māori.  

“In a population where the vast majority of New Zealanders at some point use cannabis, Māori are more likely to be stopped, searched, arrested, and convicted for minor drug offences than non-Māori,” the report states.

In New Zealand, the prison population is 52% Māori, though Māori make up just 15% of the general population. Of those incarcerated Māori, 43% are in prison on drug-related charges.

An ex cop’s change of heart

Chester Borrows, a former police officer and National Party MP, was appointed head of the Hāpaitia te Oranga Tangata Safe and Effective Justice Advisory Group in 2018. The group aims to support a public conversation among New Zealanders about what they want from our criminal justice system, canvassing a range of ideas about how it can be improved. This experience has led Borrows, a self-described conservative, to rethink his opposition to cannabis legalisation. His background means Borrows knows better than most that the disproportionate prosecution of Māori is not a new phenomenon. He’s confident that legalisation of cannabis would be a vital step towards undoing the damage to New Zealand’s indigenous people done by colonisation. 

“The fact is, if you take an economic resource off an indigenous people, and you under-educate them or poorly educate them in a foreign language, then you relegate them to occupations which make them the most vulnerable class in the country, and jobs keep changing and disappearing over time and those pressures move people away from familial support…. it’s not surprising then that 100 years later, these people are corralled in the lowest decile communities, earning the least money, most vulnerable in terms of health and housing and the most likely to be represented in all the negative stats right across our country.”

Chester Borrows speaks at September’s Parliamentary Symposium on drug law reform. Photo: Natalie Bould, NZ Drug Foundation.

Māori aged between 17 and 25 account for 37% of people convicted for possession or use of illegal drugs. It is estimated, via prisoner data from Statistics NZ, that the legalisation of cannabis will reduce Māori cannabis convictions by as many as 1,279 per year. Walsh sees this as a crucial step in giving our rangatahi back their opportunities for lives unhindered by the consequences of minor cannabis convictions.

“Simple things like education. Simple things like being able to leave the country. Simple things like having a job that you choose to apply for, not having to settle for something you know you have more potential than, but because of your history, they’re no longer available to you. To be seen as someone with integrity.”

Leading the charge

Chlöe Swarbrick is the Green Party drug reform spokesperson and one of the loudest, clearest voices on cannabis legalisation. The 25-year-old first-term MP has been campaigning on the issue since early 2018, when she first took over the Drug Law Reform Portfolio. She knows that many of our most vulnerable people are being failed by those in the greatest seats of influence in New Zealand. It’s her mission to help the public understand why drug reform is about justice, but it’s not always easy, she says.

“To try and explain the evidence is a conversation that is complicated – it’s nuanced and it’s sometimes counter-intuitive, which means that it doesn’t resonate within a soundbite media environment.”

She says she often gets frustrated with MPs taking the ‘politically popular’ route, especially when there are lives on the line. “There has consistently been this back and forward of whether we do what’s right or whether we do what’s politically palatable. In the context of the synthetics crisis we were talking about what was popular in the face of people’s deaths. It’s not just some hypothetical academic numbers on a spreadsheet, this is people’s lives.”

Chlöe Swarbrick. Photo: Green Party of Aotearoa New Zealand.

Borrows was never afraid to oppose the political consensus when he was in parliament, and that hasn’t changed. He says politicians often disregard or refuse to listen to evidence to gain political capital, and too often they’re allowed to get away with it.

“Politicians will say ‘give us the evidence’ but then when they do something that doesn’t align with the evidence they say ‘oh that’s a principled approach’. We need to keep calling for the evidence and not accept that things are vicariously evidenced because they’re said by a policeman or by a politician with status.”

He says the current Opposition is using damaging rhetoric that isn’t pushing the conversation forward, and that’s disappointing. But he says he’s optimistic about the new generation of politicians who are more open to a dialogue about drug reform than their predecessors.

“The people who are in the middle of politics are seeing this differently than middle New Zealand politics have seen it before. They’re younger. They’ve got a different life experience. They’ve got a different understanding of crime and punishment, and I think they’ve actually got a bigger heart.”

Government has work to do

Addressing the parliamentary symposium on drug reform in September, minister of justice Andrew Little said the government had a lot of work to do to prepare for a successful ‘yes’ vote next year. 

“It will be necessary to have a regime that affords maximum control, so that the obvious risks can be minimised,” he said.

These risks include easier access to cannabis, a potentially higher rate of drugged driving, and potential for more employees to be under the influence while at work. And these are valid concerns. But Little wants those in the ‘no’ camp to realise these problems are already occurring, and that legalisation is a chance to actively address and target them.

“We know the risk to young users, but most older users do consume without suffering harm,” Little says. “How does continued blanket prohibition assist in seriously addressing the risks to the young users? Likewise with drugged driving – what else, in a totally prohibitionist environment, can we do to seriously address that risk? How do we operate an effective public health campaign on cannabis use, if the starting point is ‘well, it’s prohibited so it can’t possibly be a problem’?”

Harm is being caused regardless, and regulation of the market could make it a lot safer for those who do choose to use. It creates control over the market and a chance to regulate it. It’s a chance to invest in justice for those affected by the drugs, rather than their punishment. 

“The argument for change is that after 54 years of prohibition, cannabis is well-embedded in our communities,” Little says. “Young people have access to it; supply and distribution is largely controlled by criminal elements; users don’t necessarily know what the quality and safety of the product they are buying is; and in any event, most users consume without harm, and the effort of police enforcement is increasingly turning to more problematic and harmful illicit drugs such as methamphetamine.

“On this basis, it is argued that the best way to deal with the presence of cannabis, and deal with the harm it can cause, is to legalise and control it.”

If cannabis is to be legalised, the government will need a strong model for the regulation of the market. Some of the core elements of the draft legislation include a minimum purchase and use age of 20, restricted marketing and advertising, restricting use to private homes and licensed premises and conditions on private growing. 

The government is looking at international examples of cannabis legalisation to create a market that’s both customised to our nation’s particular needs, and beneficial to the demographics in New Zealand currently the most affected by prohibition laws.

Andrew Little. Photo: Courtesy of the Minister’s office.

Avoiding corporate monopolies

In the few years since legalisation in some states, the American market has already been monopolised by large-scale cannabis corporations. That’s a outcome that dismays Swarbrick, who says corporatisation of the cannabis industry would do more harm to those already suffering under our current laws. She wants money made from cannabis sales to be filtered back into helping underprivileged New Zealand communities. Legalisation should go hand-in-hand with economic justice. 

“We need to create a regulatory framework that doesn’t enable monopolistic big busines, particularly from overseas, to sweep in and take over the market,” Swarbrick says.

Drug cultures are unique, and law reform must reflect that. Borrows says it’s crucial we stay aware of what’s happening overseas, to see what’s working, what’s not, and to tailor international policies to fit the specific needs of the New Zealand market. “We don’t think we can just uplift something from the States and drop it here. Their drug culture is totally different.”

The North American model of a regulated commercial cannabis market allows licensed retailers to sell cannabis for at-home use or to use at licensed premises. This is much the same as current alcohol laws in New Zealand. 

In Uruguay, on the other hand, the government has a monopoly on the cannabis market, and it can be purchased over-the-counter via pharmacies. Purchasers are registered so data can be collected about drug use trends. 

The Drug Foundation has recommended an approach to the retail cannabis market that would prioritise underprivileged communities, injecting jobs and industries into towns historically affected negatively by the war on drugs. Swarbrick says this model would mean more money, more jobs, and more opportunities for a life beyond criminality for many rural Māori communities. The most important thing for our leaders and lawmakers to consider, she says, is the need for Māori to be given key roles in the establishment of the emerging industry. It’s about providing justice to those communities that have been victims of the war on drugs for decades.

“We just need Māori leadership. It’s not the place for this small Pākehā girl from Auckland to say what that should look like, there needs to be not just engagement, not just consultation, but partnership in the design of these regulations and I’ve consistently negotiated with the Minister Andrew Little to ensure that is at the heart of this. But ultimately, the buck doesn’t stop with me.

“There needs to be the opportunity for kaupapa Māori businesses, co-operatives, and particularly regional Aotearoa New Zealand to play a role in the development of this industry. We have to be weary of the framing of it as an industry, because what we’re fundamentally trying to do is transplant something that currently exists on a massive scale in the underground market, to place that within a legal framework, and that transition is going to take time.”

Earlier this year parliament passed the Misuse of Drugs Amendment Bill, signalling a significant change in how cases of drug use and possession are handled by police. The bill is described by the parliament website as placing greater focus on “those who import, manufacture, and supply the drugs, and not those who use them”.

“Addressing drug-related harm requires a health-based response, rather than a punitive one, so that people can access the health and social support services they need,” it explains.

This step is a crucial one to make if we are to create an environment that is well-equipped to deal with the treatment of drug problems if cannabis becomes legal. There’s one problem with the amendment though: it still puts decisions about the targetting of drug users into the hands of police officers.

The conviction trap

Tuari Potiki is familiar with the ways in which the justice system grabs hold of people, and how hard it can be to escape the gaze of authority once it’s decided you’re a target. 

“If you get caught with a joint in your pocket, you knew that wasn’t why they wanted you, but they use that so they can get you and then bail you up with all this other stuff. The whole having to go to court and the way the justice system tries to get a hold of you and makes you feel like shit and they go at it in a way to remind you that they’re in control. It’s deliberate. A deliberate belittling.”

Potiki has seen many examples of where excessively harsh, judgemental treatment of people going through the system has become a self-fulfilling prophecy.

“It’s like ‘well if you treat me like that, I’m going to be like that’. I’ve seen it when I used to work in the jails. It grinds people down and wounds them to the point where they become worse. I’ve seen heaps of examples like that, where the system goes out of its way to grind people down.”

Photo: Getty Images.

So how do we change from where we are now into a country with laws that put victims first, stops criminalising drug use, breaks the stigma around cannabis and makes a start on addressing the systemic racism that sees Māori disproportionately affected by drug prohibition? We talk to one another. 

“In real life, even if most people have concerns you can yarn to them about it and pull it apart, and you realise that you all start from the same fundamental principles, which is that every New Zealander wants to make sure that their communities and kids are safe and protected. So if we start from that as a principle, we achieve that. Most people, when you talk through concerns, realise that prohibition isn’t working, and legalisation is the only way to change that,” explains Swarbrick. 

So much political debate these days happens online, where the tone is so easily misconstrued. Swarbrick’s advice is to talk to people face-to-face. She says she’s yet to come across a demographic that’s been entirely shut-off to the idea of voting “yes” in the referendum.

“Even in places like retirement villages I’ve had really constructive conversations. This debate is going to be won or lost on a nationwide level on meaningful conversations in a one-on-one basis.”

Creating a fairer world

As drug reform progresses, justice must look into the past as well as the future. Reform won’t just mean a fairer world for our rangatahi to grow up in, but a world where those wronged by the war on drugs are given another chance. For those with current criminal records relating to cannabis possession, supply and use, Chloe Swarbrick wants reform to mean a brand new start. 

“Why would you want to shackle people for the rest of their lives to being criminals for something that is no longer illegal?” she says. 

Potiki says criminal records, even for minor drug convictions, can have a serious effect on people’s lives, their ability to travel, get jobs and be confident in themselves.

“When people go through a journey of healing, convictions become part of what was, and you just live with that. You can’t change things you can’t change, it’s just one of the scars you carry… but it can be embarrassing and shameful sometimes.” 

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Asked what a clean record would mean to her, Tricia Walsh has one answer: “life”.

“It would mean being able to reach out and grab opportunities and possibilities to reach your potential, that having a conviction for cannabis denies you.”

It would mean justice.

This story was created in paid partnership with the NZ Drug Foundation and was first published in the magazine Matters of Substance. Learn more about our partnerships here


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