Revealed: Drug law change sees sharp fall in drug users prosecuted; bias against Māori remains

The change set into the law that police shouldn't prosecute drug users if a therapeutic approach would be "more beneficial to the public interest".

Proponents of drug reform championed it as a "watershed" moment, but concerns remained over whether codifying police discretion - along with their biases - would hurt Māori.

Fewer drug users in court

A previous Herald investigation found that police had prosecuted about 370 drug users a month since the law change, which largely reflected what they did before it changed.

But that data looked at police prosecutions for drug use/possession, which usually involve more serious charges at the same time.

New police data released to the Herald shows police action where drug use/possession is the most serious charge faced by the alleged offender.

Since the law change up until June 2020, a quarter of these drug users caught by police ended up being prosecuted.

That fell from a third of all such drug users between August 2018 to July 2019 - the 12 months before the law change.

Police have instead been using warnings and "other" alternative measures, which include Youth Aid referrals, family group conferences, alternative action plans, community justice panels, or no further action.

In actual numbers, police prosecuted 1200 drug users in the 10-and-a-half months following the law change. They gave 3093 people warnings, and pursued "other" measures for 546 people.

In the year before the change, they prosecuted 1567 drug users, warned 2761 users and sought "other" measures for 417 people.

Exactly the same proportion of drug users facing police action were Māori - 35 per cent - before and after the law change.

The breakdown for police action for Māori and non-Māori since the law change is:

• For Māori, 28 per cent went to court, 61 per cent were given a warning, and 10 per cent were "other".

• For non-Māori, 23 per cent went to court, 65 per cent were given a warning, and 11 per cent were "other".

And for the 12 months before the law change:

• For Māori, 37 per cent went to court, 54 per cent were given a warning, and 9 per cent were "other".

• For non-Māori, 31 per cent went to court, 60.5 per cent were given a warning, and 8.5 per cent were "other".

The law change was hoped to bring a huge increase in health referrals, but police do not have data for the number of health referrals before August 2019.

About 49 people a month - or 10.7 per cent of all drug users caught by police - received a health referral since the law change; 30 per cent of them are Māori.

Police said health referrals are only offered to those given a warning.

"The alleged offender also needs to agree to the referral, and this is sometimes declined," a spokesperson said.

The law change had emphasised the importance of a health-based approach, the spokesperson said.

"We have responded to this by reducing the amount of people we are charging, and instead increasing the amount of warnings and alternative resolutions we are giving."

Justice Ministry data - which is slightly different to the police data - shows a declining trend for the number of people facing drug use/possession as their most serious charge: 1550 alleged offenders in 2017/18, 1392 in 2018/19, and 1126 in 2019/2020.

Of the 627 people convicted of drug use/possession only in 2019/20, 26 were sentenced to prison.

For cannabis use/possession only, 230 people were convicted, five of whom went to jail.

More prosecutions for cannabis use for Māori

Looking at the police data for cannabis users rather than for all drugs, police seemed to have made a concerted effort to use alternative resolutions after the law change.

But this didn't last long, and the data shows a more punitive police approach towards Māori.

The number of "other" proceedings for cannabis users outstripped prosecutions for only one month for Māori. For non-Māori, it lasted four months.

For all people caught with cannabis, court proceedings eventually overtook "other" proceedings before the lockdown at the end of March.

During the lockdown months of April and May, the number of police proceedings jumped by about 50 per cent, and remained high in June even though New Zealand was back to alert level 1 from June 9.

Police said this was partly because of a greater police presence in communities during those months.

There were also a number of organised crime operations that would have contributed to an increase, a police spokesperson said.

The data shows the jump in court proceedings since lockdown was mainly due to cannabis use/possession - and was not applied equally to Māori and non-Māori.

Prosecutions jumped from 16 per cent of all police action against Māori cannabis users in March to 22 per cent in April (a 37.5 per cent rise), before undulating to 18 per cent in May and 23 per cent in June.

In actual numbers, this meant 15 Māori faced court proceedings for cannabis use in March, but this rocketed to 42 in April and stayed high in May (33) and June (31).

Over the same months, prosecutions fell from 18 per cent of all police action against non-Māori cannabis users in March to 16 per cent in April and 14 per cent in May, before rising slightly to 15 per cent in June.

Racism in the police and the justice system?

An expert panel on cannabis led by Dr Juliet Gerrard, the Prime Minister's chief science adviser, said there was "systemic racism" in the justice system; Māori are three times more likely to be arrested and convicted of a cannabis-related crime.

The panel said this could be partly addressed by legalising cannabis for personal use.

"Legalisation has the potential to formally address some of the bias in the justice system by placing Māori on a substantively equal footing with other citizens regarding cannabis use," the panel said.

Justice Minister Andrew Little has referred to the "entrenched structural racism" in New Zealand.

But police and Police Minister Stuart Nash have rejected any racism in the police force, instead calling it unconscious bias.

"We have made the identification and mitigation of unconscious bias a priority," the police spokesperson said.

"The first step in mitigating bias is having all staff acknowledge that everybody has them.

"We have started unconscious bias education and training to key staff across the organisation. We acknowledge however that this is a long-term process and ongoing commitment."

In June Police Commissioner Andrew Coster, speaking at a George Floyd vigil in Wellington in June, acknowledged the "appalling"" criminal justice outcomes for Māori

"This is not a situation that we should ever accept and I do not accept it."

In Wednesday's leaders' debate, Labour leader Jacinda Ardern was asked about the disproportionate impact on Māori when it comes to policing cannabis.

"Yes, it is unfair and yes, it is wrong. It's a reason to fix our justice system," she said.

Synthetic cannabis re-emerges

The main aim of the law change was to attempt to address the crisis of about 80 deaths from synthetic cannabis between 2017 and 2019.

The change classified two synthetic cannabinoids - AMBFubinaca and 5F-ADB - as Class A drugs - but police do not hold any data on offences relating to these compounds since the law change.

Other government agencies do keep tabs on the compounds: AMBFubinaca had not been detected in coronial cases since April 2019, at the border since September 2019, or in forensic testing of drug samples since November 2019.

But last week ESR found it in samples seized in Palmerston North. The three samples originated in Northland, Bay of Plenty and Christchurch. One has been confirmed as AMB-Fubinaca, and the other two are yet to be confirmed.

AMB-Fubinaca is reported to have an effect that is 75 times stronger than THC, the psychoactive compound found in cannabis. Of 58 cases of AMB-Fubinaca intoxication identified in Auckland, 93 per cent of victims died at the scene of intoxication.

University of Otago professor of psychiatry and addiction medicine Doug Sellman said it was concerning to see the re-emergence of the dangerous compound.

"One of the downsides of cannabis prohibition in New Zealand and elsewhere is the appearance of high potency, and frankly dangerous, synthetic cannabinoids such as AMB-Fubinaca.

"These cannabinoid products are much easier to hide, transport and sell in an illegal black market."

Massey University associate professor Chris Wilkins said most synthetic cannabis users reportedly prefer natural cannabis.

"Greater legal access to cannabis could be considered. Countries with more liberal cannabis laws are less likely to report synthetic cannabinoid use and related deaths."