The changes to drug laws in 2019 were hoped to trigger a new era of a less punitive and more health-based approach to recreational drug use. Some of that has happened, but it seems to have already peaked. Derek Cheng investigates.
The latest police data shows the likelihood of being charged for drug use/possession has been steadying and is now about 50/50 but for first-time offending it has dropped to 17 per cent.
If police catch you with cannabis, the charging likelihood falls to about one in three, but for methamphetamine it’s still high at about three in four. But if you have no history of drug use offending, this drops to 12 per cent for cannabis and 25 per cent for methamphetamine.
These trends are revealed in the data behind the latest Policing of Drugs in New Zealand report, which shows how police have been dealing with drug use/possession since the Misuse of Drugs Act changes in 2019.
The changes were meant to swing the pendulum away from punitive approaches towards a health-based approach. They were characterised at the time as effective decriminalisation - though not by politicians - because they clarified that police shouldn’t prosecute for drug use if a therapeutic approach would be “more beneficial to the public interest”.
A new health referral pathway was added to the suite of police options, but since the law change it is only being taken up in 3 per cent of all drug use/possession proceedings. How to improve take-up has been an issue from the beginning.
One of the biggest changes is how police deal with first-time drug use/possession offenders, half of whom were prosecuted in the period through 2016 and most of 2017. This dropped to 35 per cent for the 22 months before the law change, and has since fallen to just 17 per cent.
For those with a history of drug use, the prosecution rate jumps to 58 per cent (including 43 per cent for cannabis and 75 per cent for methamphetamine). This has prompted the Drug Foundation to question why someone with an offending history, who might be in more need of a health-based response, should be more likely to face charges.
Māori remain over-represented and make up 38 per cent of all drug use/possession police proceedings, but police say other factors such as age, offending history and severity of the offence are the main determinants in how drug use/possession is policed, while ethnicity has “little or no bearing”.
This mirrors similar findings two years ago after police crunched data for all drug use/possession proceedings.
But looking at the data where drug use is the most serious offence is considered a more accurate picture of how police deal with drug users. This data has shown a steeper drop in prosecutions for non-Maori than for Maori, according to previous investigations by both the Herald and the Ministry of Health.
More punitive to less punitive to equally punitive
The police report, by police chief data scientist Dr Sheree de Malmanche, looked at monthly data for all drug use/possession proceedings across three periods from January 2016 to the end of June 2023, as well as different age groups (youth and adult), ethnicities, offending history, and across all 12 police districts.
During 2016 and most of 2017, the non-prosecution rate had been more or less steady. The use of alternative action became increasingly more common in the 22 months before the law change, and afterwards there was an 18-month period (from April 2020 to November 2021) when it was used more often than prosecution.
For the 20 months since then, the pendulum swung the other way and police use of prosecution and alternative action has been largely the same.
“The drop-off in alternative action really signals that discretion may have come to the end of its positive impact on convictions,” Drug Foundation executive director Sarah Helm said.
For cannabis use/possession, the use of alternative action became more common than prosecution in May 2018 (and for first-time offenders since April 2016), and its use relative to prosecution has become more pronounced since the law change.
How police deal with methamphetamine use/possession has seen the biggest change. For 2016 and most of 2017, 95 per cent of those caught with the drug were prosecuted. This dropped to 90 per cent for the 22 months before the law change, and has since dropped further to 70 per cent (and 75 per cent for the most recent 20 months).
This was not only due to the change in law, but also a new police instruction at the same time to use a warning for low-level methamphetamine offences.
More chances of being charged if repeat offender, older, using LSD
For the entire period (46 months) since the law change, there were about 1100 police actions per month dealing with drug use/possession.
Police didn’t prosecute for 54 per cent of those, up from 38 per cent for the 22-month period before the law change and 31 per cent for the period before that. This change amounts to 250 fewer prosecutions per month.
On average, the most common police responses were:
- prosecution (46 per cent, down from 62 per cent for the 22-month preceding period)
- warnings (35 per cent, up from 29 per cent)
- taking no action (8 per cent versus 5 per cent)
- youth referrals (5 per cent versus 3 per cent)
- health referrals (3 per cent, not an option pre-change)
- using Te Pae Oranga, or iwi community panels (3 per cent versus 1 per cent).
The latter two require the accused to opt for those options, rather than being a police choice.
The number of police actions per month peaked at about 2000 per month in April 2020, when the country was in Covid lockdown, and has dropped to between 800 and 1000 per month for the 20 months to June 2023.
De Malmanche’s report also found
- Only 1 per cent of young people were charged for a first-time offence, down from 4 per cent for the 22-month period before the law change; 24 per cent of youth with prior drug use offences were charged, down from 36 per cent
- 17 per cent of adults were charged for a first-time offence, just under half of the rate (35 per cent) before the law change; 58 per cent of adults with prior drug offences were charged, down from 72 per cent
- Māori made up 38 per cent of police proceedings since the law change - no change compared to the preceding period
- About 32 people per month were referred to health and addiction services, while police decided to take no action for an average of 93 drug use/possession offences per month
- Cannabis (63 per cent) and methamphetamine (31 per cent) were the drugs involved in almost all of the police proceedings - no change compared to the preceding period.
- Police were far more likely to charge for other offences that occurred at the same time as drug use/possession - for both youth and adults
- The likelihood of being charged across all drug use is falling. It remains highest for LSD (44 per cent for first-time offenders and 81 per cent for repeat offenders), a drug considered less harmful than alcohol, tobacco, methamphetamine, synthetic cannabinoids, and cannabis.
- The biggest factors in deciding to prosecute were age, recency of offending, drug type (a warning is more likely for cannabis), severity of offence, and offending history. “Ethnicity and gender were neither predictive nor important in the model, suggesting they had little or no bearing on outcomes, both pre and post the MODA amendments,” the report says.
- Police in the Southern and Counties Manukau districts appear to be less likely to prosecute for drug use/possession, while police in the Canterbury and Eastern districts appear more likely to prosecute.
These are similar observations to her report from 2021, though the number of people taking up a health referral since then has more than halved from 66 to 32 per month, while the number of times police decided to take no action increased from 75 to 93 per month.
Over-policing of Māori?
Interviewed for her 2021 report about the overrepresentation of Māori in the data, she said it was hard to draw conclusions from the data, and neither she nor Police Assistant Commissioner Bruce O’Brien would be drawn on whether over-policing of Māori might be a reason. (The Herald requested an interview on her 2023 report).
Systemic racism - conscious or not - has also been identified as an issue in the justice sector.
“The effects of negative racial stereotyping and profiling are felt in justice outcomes, such as the disproportionate representation of Māori in prison,” says the Safe and Effective Justice group’s report Turiki! Turiki!
“Māori are 5.7 times more likely than other New Zealanders to have contact with Police. From that initial contact, the problem compounds. Māori are more likely to have been handcuffed or pepper sprayed, more likely to be arrested, convicted, sentenced, and imprisoned [citing a 2017 police report on the police use of force].”
The Herald has previously looked at the impact of the law change on policing of recreational drug use, but looking at drug use/possession where it is the most serious offence.
This is considered a better reflection of police behaviour towards drug users because people are often charged with more serious offences at the same time as drug use/possession.
The Herald found that Māori nationwide were 24 per cent more likely than non-Māori to be charged for drug use/possession before the law change, but this grew to 41 per cent for the seven months following the 2020 election, when the Government sent a clear message that those facing drug use as their most serious offence should be offered a health referral.
The Ministry of Health also looked at the same data - drug use/possession as the most serious offence - in their 2021 review of the MODA changes. Its report also found that police were charging less for Europeans than for Māori. Though the treatment of Māori and non-Māori was similar once they were in the justice system, prosecution and conviction rates were dropping at a faster rate for non-Maori.
“We cannot draw conclusions on the level of any inequity as the data we have only shows the ethnicity of the person, not the other demographic information that contribute to understanding why decisions were made,” the ministry’s report said.
“We do not have case-level data to inform our understanding and have not interviewed Police officers to understand their decision-making framework.”
Should previous offending history count?
The Drug Foundation’s Sarah Helm has previously called the different use of discretion across police districts a “postcode lottery”.
She questioned whether prior offending should have such an impact on the chances of being prosecuted, a sentiment that Andrew Little also expressed when he was Health Minister.
“If many drug offenders actually have underlying drug addiction problems, and we want to fix the problems, then we want to do that regardless of prior track record,” Little said at the time.
While police discretion remains, previous drug use offences are an aggravating consideration in the police decision to prosecute, while no previous history is a mitigating consideration.
“We are worried that those with prior offences continue to be, in most cases (58 per cent), prosecuted for possession offences,” Helm told the Herald.
“Prior convictions shouldn’t really have a bearing on the decision. Quite often people who are repeatedly caught out with drugs struggle with addiction or experience other health or social problems. We would like to see them getting the support they need to overcome those issues in a well-resourced health and social support system.”
She noted how the pendulum had moved away from punitive responses and then back towards them.
“It is in everyone’s interests to have a clear law that is fair and equal for all. It could be your young person that is picked up and prosecuted for cannabis use.”
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery and is a former deputy political editor.