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In a recent article, Dr Rose Crossin and Professor Joe Boden argue strongly and convincingly that it is time to “overhaul New Zealand’s outdated and harmful drug laws.
A new approach
Crossin and Bodin argue in favour of a health-based, Te Tiriti aligned approach that not only reduces harm but saves tax money and police time.” (Crossin, R. Boden, J., 2023)
A useful definition of drug ‘harm’ is offered by Crossin, Cleland and Boden (2023): (Crossin R, Cleland L, Wilkins C, et al., 2023)
They say harms can be categorised as those that impact on individuals who use a drug, and those which impact upon others, such as families, communities or broader society.
There is a complex interrelationship between harms.
Drug-related convictions and other related harms, for example, tend to further disadvantage vulnerable individuals and communities.
In addition, the illegality of some drugs can add to any harms accruing from merely using the drug.
The current drug laws
What evidence is there that our current drug laws are not working well?
Taking the example of cannabis, there is research clearly showing that:
“an arrest/conviction for a cannabis related offence does not reduce the use of cannabis, with up to 95 percent either increasing their use or continuing with the same level of cannabis use following arrest.” (Fergusson, D M. Swain-Campbell, N R. Horwood, L J., 2003)
In addition, as Crossin and Boden point out:
“Drug harm is being created and increased by our drug laws.
“A person charged with drug possession can lose their job, be isolated from their family and friends, be stigmatised and shamed. “In short, they lose the things needed to live a meaningful and happy life, and stigma creates a barrier to seeking help.
“This creates a cycle of harm that impacts a person, their family, their community.” (Crossin, R. Boden, J., 2023)
Crossin and Bodin’s concerns echo that of others such as Lynne Bowyer and Deborah Stevens:
“A drug conviction has serious repercussions for a person’s future possibilities; it narrows life opportunities, making it more difficult to get employment, to travel and to move into more life-affirming and sustainable social spaces.
“Further, if imprisoned, individuals are exposed to more ‘hardened’ criminals and little is done to address the impetus for drug use.
“Such negative repercussions have been noted by the Law Commission, who state that individuals who receive criminal convictions as a result of their possession or use often experience levels of harm quite disproportionate to their offending.
“Extending beyond the individuals involved, the harms from a punitive approach to drug use also become woven into families and communities, becoming entrenched with each generation, all of which further alienates those concerned.
“Statistics show that many of those convicted on charges relating to cannabis possession and use are young people from already marginalised groups. (Bowyer, L. Stevens, D., 2019)
In short, “a significant proportion of harm of some substances is caused by the legal status of the drug, rather than from the drug itself.” (Vincent, 2023)
Punishment vs justice
Catholic ethicist Dan Fleming, who is Group Manager of Ethics and Formation, St Vincent’s Health Australia, recently shared a story relayed to him by one of the addiction medicine specialists from St Vincent’s Healthcare Group, Australia. (Fleming, 2023)
A young man from a non-English speaking background struggles with anxiety. Using cannabis helps him curb his emotional turmoil.
He gets caught buying for personal use from someone he knows. He’s given a low-level drug dealing offence, and a criminal record.
His family – good people – are thrown into turmoil.
His mother is ashamed and in tears when she sees him. His father and brothers are angry. They disown him.
The community are destabilised, and the family becomes isolated.
The young man can’t get a job because of his record.
All of this makes him more anxious. More anxious. More drug use.
He found his way to our addiction medicine service, and very slowly things began to turn around.
But the starting point for providing our help to him is not where it could have been.
We were not caring for a man who needed help dealing with anxiety and who was desperate for some advice on how to manage that stress without drugs.
We were now caring for a young man cut off from family and friends, who was struggling to find a job because of his criminal record, and who was wrestling with his inner turmoil at his family’s anguish.
That’s a much harder place from which to begin a healing journey.
Compounding problem
Fleming, commenting on the Australian context, which employs a similar approach to Aotearoa New Zealand. It also concludes:
“Rather than acting as a solution to a problem, our solidarity with those we serve has taught us that our current criminal justice framework for illicit drugs compounds problems, undermining human flourishing in an ongoing way, particularly for those who have a substance use disorder.”
Drawing on Martin Luther Jr’s commentary on the parable of the Good Samaritan, Fleming argues that:
“we ought to fuse concern for attending to a person’s immediate wounds and their long- term needs with offering our voice and expertise to bring about the reforms needed to prevent them from becoming wounded in the first place.”
To paraphrase Fleming, it’s about using our power to effect change, being committed to changing the road so it’s not so dangerous anymore, while still caring for the one who is hurting.
The Referendum
Just three years ago, New Zealanders participated in a poorly thought-out referendum that asked people whether or not they would “support the proposed Cannabis Legalisation and Control Bill”.
The Bill was ultimately rejected by a small margin.
That led various politicians, including the then Minister of Health Andrew Little (who readily agrees the current approach is causing harm) to suggest that there is now no social licence for drug law reform. (Radio New Zealand, 2022)
Commentators such as Crossin and Bodin, who are specialists in the field, reject the idea that there is no licence for reform. In their words:
“New Zealanders were asked a specific question about legalising cannabis …
“We were not asked about whether we supported decriminalisation, or increased funding for harm reduction, or expanding programmes like Te Ara Oranga that are proven to reduce drug harm without criminalisation.
“All of these actions must be taken, and we do not need another referendum to do so. (Crossin, R. Boden, J., 2023)
A 2019 amendment allows the police to exercise discretion as to whether to prosecute anyone caught in possession of a controlled drug,.
That amendment led some to describe the current state of affairs as approximating decriminalisation, there is plentiful evidence to show that it is not applied equitably:
“Māori, those with a previous arrest record for non- cannabis related offences and those reporting involvement in violent/property offending were more likely to be arrested or convicted than other cohort members having the same level of cannabis use.”
(Fergusson, D M. Swain-Campbell, N R. Horwood, L J., 2003)
Examples of an alternative health-based approach are already in operation.
Court system
Pat Snedden writes passionately about Aotearoa’s three specialist Alcohol and Other Drug Treatment Courts located in Auckland and Hamilton.
“The court is solutions focused and aims to ‘break the cycle’ by treating the causes of offending.
It targets offenders who would otherwise be imprisoned, but whose offending is being fuelled by their unresolved ‘high-needs’ issues of addiction or dependency.
“They are also assessed as being ‘high-risk’ in terms of their non-compliance: in other words, past sentences and court orders made have not changed their situation.
“Consequently, they are on a treadmill of offending, typically being punished but then going on to reoffend.
“As an alternative to prison, the court applies evidence-based best practices in a potentially transformative programme of case management, treatment, drug testing, monitoring and mentoring. (Snedden, 2023)
Changing the law
To conclude, in 2020, in the leadup to the Cannabis Referendum, the Nathaniel Centre wrote:
“There are good arguments to be made that the current laws and regulations around the possession and use of recreational cannabis are not working well; that certain groups of people are more disadvantaged by these laws than others, including the way the law is applied.
“Saying ‘NO’ to legalising recreational cannabis will still allow us the opportunity in the future to revisit our current laws, including the possibility of some form of decriminalisation.
“That opportunity exists now. It needs to be taken up by our politicians using a cross-party approach. There is no shortage of quality information for them to consider.
“The argument for adopting a strong health-based approach and moving away from the current largely punitive approach is supported by a range of robust research.
“Without minimising the harm that can be caused directly by drugs, it is undeniable that a significant proportion of drug-related harm is caused by our current approach to regulating them.
“Let’s first agree that the current laws and approaches to drugs are not working and that they are disproportionately affecting some of our most vulnerable populations. Let’s then agree to have a mature discussion about an alternative approach.
“Decriminalisation offers an alternative path for reforming our drug laws; for moving from a criminal-based approach to a health-based one focused on the reality of people’s lives and a desire for individual, whanau and social flourishing as well as greater social cohesion.
“Whether or not there is a social licence for reform, it is about doing the right and the best thing, and that’s what politicians are elected to do.
“Furthermore, from a Christian-Catholic perspective, and in line with Pope Francis’ recent update to the Statutes which shape the way we do theology, it’s also an expression of “intellectual charity” which recognises and prioritises the questions and needs of those “on the existential peripheries”.
- John Kleinsman (PhD) is director of the Nathaniel Centre for Bioethics.
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