The different way police are responding to cannabis use is a major part of why prosecutions for drug use are trending down since a 2019 law change. Photo / 123rf
More than a third of the 500-odd people a month charged for drug use/possession are Māori, but police say ethnicity is not a factor in whether police charge drug users.
Instead the main factors include criminal history, the severity of other offending at the time, and age, because youths are far less likely to be charged than adults.
But the Drug Foundation says a new report into policing drug use shows the ongoing "hugely inequitable outcomes" that are inherently part of police discretion.
The report, by police chief data scientist Dr Sheree de Malmanche, looked at data across more than eight years, including the two years since a 2019 law change that was described at the time as effective decriminalisation of drug use.
The change codified police discretion into the law, and clarified that police shouldn't prosecute for drug use if a therapeutic approach would be "more beneficial to the public interest".
The Government's aim at the time was to take a health and harm-reduction approach to drug use, rather than a criminal justice approach.
The Herald has been tracking the effect of the law change for over a year by looking at the police response where drug use/possession was the most serious offence, and seeing how many people in such circumstances are charged.
The data showed that the charging rate by police had fallen significantly since the law change, but Māori were now even more likely to be charged than non-Māori.
De Malmanche looked at different data, including every time police encountered drug use/possession as well as ethnicity, gender, age, criminal history, other offending at the same time, and the severity of that offending.
Her report found:
• The number of prosecutions fell from 585 a month before the law change to 497 afterwards.
• The number of alternative actions (warnings or referrals) more than doubled from 251 a month to 541, mainly due to the change in how cannabis is policed. Cannabis (58 per cent) and methamphetamine (37 per cent) make up almost all of the drugs in possession offences.
• 66 people per month are referred to health and addiction services.
• Police choose not to take action for 75 people a month. Reasons include, for example, if the offending wasn't serious enough.
The report highlighted how police were far more likely to use warnings or referrals for those caught with drugs, relative to criminal history.
If a person had little or no such history - defined as fewer than two prior offences - the charging rate for adults more than halved since the law change, from 43 per cent to 18 per cent.
For youths (under 17) it dropped even more dramatically, from one in five before the law change to one in 50 afterwards.
For those with at least two prior offences, the charging rate for adults dropped from 80 per cent to 57 per cent since the law change. For youths, it fell from 65 per cent to 27 per cent.
De Malmanche said criminal history didn't necessarily make prosecution any more likely than the severity of other offending committed at the same time. The former might also be an indication of the likelihood of the latter.
Police were also more likely to lay charges for other concurrent offending than for drug use/possession.
Since the law change, the charging rate for adults with little or no criminal history was more than four times higher - 73 per cent compared with 18 per cent - for other offences committed at the same time as drug possession.
For adults with more criminal history, it was 57 per cent for drug use/possession, jumping to 94 per cent for other concurrent offences.
Māori made up 37 per cent of those with drug use/possession offences since the law change, significantly higher than their 17 per cent of the total population.
But the rate of prosecutions for Māori compared to Europeans was not materially different, with Europeans being slightly more likely to be charged regardless of the level of previous offending.
"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 law change]," de Malmanche said in her report.
She said it was hard to draw any conclusions from the data as to why, if ethnicity wasn't a factor, Māori made up a disproportionately large share of those with drug use/possession offences.
Neither she nor Police Assistant Commissioner Bruce O'Brien would be drawn on whether the data suggested that police spent more time patrolling areas where more Māori lived, or whether Māori - for a variety of complex reasons - may be more likely to be drug users than non-Māori.
"I don't think you can draw that conclusion from the study, and I didn't go into that kind of detail," said de Malmanche.
O'Brien said police attended a variety of circumstances while on patrol or when called to incidents, and they then have to "deal with what's in front of them".
"Each of these incidents has different circumstances. We take into consideration the person's age, other offences that might have occurred at the same time, and the severity of those offences."
He noted the independently-led work programme looking into "where bias may exist in our organisation".
"Those statistics show we've still got some work to do, and we're completely committed to that."
O'Brien said the number of people being referred to health services, while low, was trending in the right direction.
"And we've still got work to do. But depending on the circumstance, a health referral might not be the best outcome for them. It might be somebody that might not necessarily have an addiction issue.
"We're always looking at ways that we can use alternative resolutions and health referrals, especially for people that might be suffering with addiction challenges."
The low number of health referrals was highlighted in a review of the law change that has been received by Health Minister Andrew Little.
"There was a question about what more needs to be done to make that effective, or real," Little told the Herald in a recent interview.
"The question was, even for those whose use is problematic, whether or not the way referrals are being done makes assistance as accessible as it could be."
The review also looked at police use of discretion, which Drug Foundation executive director Sarah Helm said was still leading to "inconsistent and hugely inequitable outcomes".
"The key outtake for me is that we still haven't got it right," Helm said.
"This isn't a shift to a health-based approach to drugs with a clear set of laws so people know where they stand. Discretion is by its nature inconsistent, with the highest burden of that inconsistency falling on Māori and young people."
She said it was good to see the increase in the use of warnings and referrals, but decriminalising drug use would "deal a death blow to ethnic disparities".
"While the police are clearly trying to apply the law more evenly between Māori and non-Māori, the reality is they are picking up disproportionately more Māori, leading to worse outcomes."
Helm and several others in the health and social service sector have called for the Government to review and replace the Misuse of Drugs Act, which is widely considered no longer fit for purpose.
Little has ruled this out, however, saying the Government doesn't have the social licence for major drug law reform following the result of the referendum to legalise cannabis for personal use.
De Malmanche's report also showed the police response varied with the drug involved, with prosecution far more likely for LSD and methamphetamine than for cannabis or ecstasy.
Only 12 per cent of cases for cannabis possession for those with little or no criminal history were charged, but for LSD it was 65 per cent.
Helm said this was "interesting", given the scientific and health consensus that LSD was a less harmful substance compared to other drugs, including legal ones like alcohol and tobacco.
"It is concerning that the drug is classified in the way it is and that people are being prosecuted for possession of it. The classification system bears very little relationship to harm caused and risk of dependency," she said.
"There is no logic applied here."
The report also showed the charging rates for different police districts.
For adults with little or no criminal history, the districts where prosecutions were a greater share of the police response were Canterbury, Northland, Auckland and Eastern. Referrals and warnings were used the most in Southern, Tasman and Waikato.
For those with more criminal history, the charging rates were highest in Eastern, Auckland and Canterbury, while the lowest were in Southern, Waikato and Tasman.
Helm has previously described this as the "postcode lottery" of how drug possession is policed, but de Malmanche said it was hard to draw any conclusions from the data because the numbers were relatively small.
"You need to go into more detail into the outcome for that particular individual, and the district that a person comes from is not a factor," de Malmanche said.
Nor did it show anything conclusive about the levels of serious crime in different parts of the country, she said.
"It's a bit of a leap to assume that there's less severe crime in the Southern District."
O'Brien said police intended to conduct similar reports in the future, perhaps every six months, to track changes in police behaviour.
It's understood a NZDF aircraft and multiple helicopters are involved.