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A compelling NZ academic argument to end cannabis prohibition – from 1975

Later this year New Zealand will vote on whether to legalise cannabis, but it’s far from a new idea, as a 1975 study reminds us. Alice Webb-Liddall looks at the views of two Otago University academics, 45 years apart.

In 2013 Uruguay became the first country to fully legalise cannabis for recreational and medicinal use. Seven years on, there are now a handful of countries around the world with legal cannabis, each with its own model, or models, for regulation.

New Zealand, so often a leader in progressive reforms, is catching up with the international mood with the referendum to be held alongside this year’s general election. But it’s not a new idea. In 1975, a study titled Cannabis: Authoritarianism v Libertarianism was published. The University of Otago paper, published in the Otago Law Review, was written by Kevin Dawkins, then in the early part of his 46-year career in the law faculty. It set out to discuss whether prohibition of marijuana was the best option. 

It turns out the study told us a few things that remain squarely relevant to cannabis legalisation today.

People will use cannabis whether it’s illegal or not

The paper notes that between 1970 and 1974 the number of cannabis offences increased almost tenfold. At this point, cannabis was classified under the Narcotics Act, and in 1974 the 1,583 cannabis offences accounted for over half of all drug offences for that year.

The prohibition approach has manifestly failed to stop people trying the drug. In 2013, over 80% of people 21 years and older admitted to having tried cannabis products at least once. 

The cost of prohibition outsrips the cost of legalisation

In 1975, Dawkins puts it like this: “Enforcement practices and the institutional costs in maintaining special enforcement facilities and the necessary diversion of resources from serious criminal situations have not produced corresponding benefits. Nor is there any reason to believe that they will in the future.” Changes to legislation had done nothing to address the core problem of addressing the “social costs of prohibition”.

Today, another Otago academic, Joseph Boden, echoes that sentiment. Boden, an associate professor in psychological medicine who sits on the government’s Expert Panel on Cannabis, says prohibition only breeds criminality and costs the public. “To put people in jail for drugs, have them involved in the criminal justice system where maybe they end up with a prison sentence, is much more expensive than any health costs that might accrue with cannabis …

“In terms of the social cost, it’s enormously greater to criminalise people who are using substances, because a conviction can change your life. It can stop you getting certain jobs, it can stop you leaving the country, travelling outside of New Zealand.”

Alcohol is a more dangerous substance, and it’s readily available in unlimited quantities

“Alcohol is one of the most dangerous drugs, when used to excess, and from everything we know now it is probably considerably more dangerous than cannabis, if only for its capacity to produce strong physical, as well as psychological dependence,” writes Dawkins. 

Boden says the reason alcohol is legal but cannabis isn’t is simply a historical accident. 

“Alcoholic drinks were the safest things to drink in a continent where most of the water was contaminated. If you had to distill, brew, or do whatever to create a beverage, it was safer than water. It’s always been a part of European culture and because our [New Zealand] culture is at least in part European-based we’ve stuck with that legacy that we never dealt with alcohol in a very sensible manner.”

Alcohol was involved in a third of New Zealand family violence incidents in 2018. It was involved in one in five fatal crashes between 2015 and 2017, and in 2007, 800 premature deaths were attributed to alcohol. 

“We’re not very restrictive of alcohol because that’s just the way it is, and we live in New Zealand and we’re big drinkers. If we thought about it carefully, which public health oriented people do, we could be doing much more to control and regulate the sale and supply of alcohol which would reduce alcohol related harm,” says Boden.

Cannabis is a drug, and can cause serious harm, but is on balance a safer substance, reckons Boden. 

“[Cannabis] doesn’t have a lethal dose. There’s not an amount you could take that would kill you, or at least we’re not aware of what it is. We’re very clear about what the lethal dose of alcohol is. There’s clear evidence that alcohol is carcinogenic. There’s mixed evidence about cannabis.”

He adds: “Some strains [of cannabis] have a much higher concentration of THC, which is something a legal regime would be able to control… We know a large number of the population enjoy using it, a large number of those people are not harmed and almost nobody dies, but we could make it a lot safer for them and we could redirect the economics of cannabis to serve our interests as a society instead of small groups of people acting illegally.”

Legislation relies too heavily on police discretion

While Dawkins’ study doesn’t directly discuss race, it does note controversy around police powers to conduct search and seizures without a warrant, of anyone suspected of being in possession of cannabis.

Forty give years on, Boden puts it like this: “Prohibition is racist, it operates in a racist manner, and you see this everywhere and that’s one of the main reasons, to me, to get rid of it. It’s actually a tool for white people to oppress minorities.

“The trouble with police discretion is that it then goes down to the individual officer who isn’t necessarily accountable for their motivations and may not even understand their own motivations …  Māori are two and a half times more likely to be convicted for cannabis offences than non-Māori, and that’s after correcting for differences in rates of use. If you’re brown, your chances of getting leniency from police is lower.”

Prohibition can lead to the exposure of people to much more dangerous drugs than cannabis

When alcohol was prohibited in the 20s in America, it led to the rise of gangs, who supplied people with unregulated and sometimes dangerous forms of the substance. In New Zealand, the cannabis market is also a large source of income for gangs. Dawkins’ paper notes that prohibition has created a “structure of illicit distribution, together with consequent dangers – for example, the opportunity of association with substances a great deal more potent and dangerous than cannabis.”

Boden says it’s an observation first made in the Netherlands, where a decriminalisation effort showed a decrease in cannabis users using other illicit drugs, because they didn’t have to go to a dealer to buy it.

“Cannabis and meth in New Zealand are two of the most commonly-available drugs, and gangs are selling both.” The up-sell is perilous.

The draconian attitude is bust

Dawkins laments in 1975 what he calls an “over-response to cannabis – a response that criminialises use of the drug, exaggerates its harmfulness and is itself counterproductive.”

The punitive approach simply doesn’t work, he concludes. “The solution lies rather in a change in policy … towards recognition of the social costs of prohibition and the limitations of the criminal law as an effective mechanism of social control,” he writes.

Boden in 2020 offers an analogy that suits the season. “Swimming in the sea is a favourite pastime of New Zealanders but you can die swimming in the sea. Every year people die swimming in the sea, so what are we doing to address this? Have we banned swimming in the sea? No, we have surf lifesaving clubs, we have swim between the flags, we have every school kid in New Zealand learning to swim. We have all these things that are designed to make a pleasurable activity safer.”



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