Balancing justice's racist scales

By the time Tricia Walsh was 13, she estimates that more than 50 men had abused her. After suffering violence at the hands of her mother throughout her childhood, she turned to gangs as her support, but here, the cycle of abuse only continued.

Drugs became her escape from the painful, violent reality of her life. A mother at 15, she was lost, confused and in abusive relationships with the people closest to her, and drugs had led to multiple stints in prison. Her last finished in 2008 – Walsh was 42.

The trauma she suffered from so many people she should have been able to trust led her to drugs, and drugs led her into a system that was punitive and apathetic. But her life and so many lives like hers could have been so different if she’d received the treatments she needed sooner.

Now an anti-P campaigner, a proud mum and grandmother, Walsh has turned her life to fighting a system that took hers away. She says without drug law reform, so many others, especially young wahine Māori, will get stuck in the same harmful cycles of trauma, drug use and prison.

"My history has been one based on trauma, and because of that trauma, there was a progression based around not wanting to face each day.”

In 2020, New Zealand voters will get to have their say on the legalisation of recreational personal use of cannabis in a referendum that will sit alongside the general election. This referendum is a crucial step towards justice and away from a regulatory framework designed for the War on Drugs philosophy that has been the basis of New Zealand’s drug policy for decades.

The Nixonian approach to drugs that informed our own laws here in New Zealand is widely perceived as a failure. In New Zealand, it has disproportionately targeted, prosecuted and imprisoned Māori. People who need help have been put in jail. It’s cost the justice system millions of dollars. The long-term consequences are devastating.

For Walsh, one of the most important outcomes from drug reform would be a better understanding by all levels of the justice system, from Police officers to judges, about the role of trauma in offending. She wonders what difference it would have made to her life if there had been easily accessible addiction and trauma treatments available before she found herself in prison.

“You have kids who’ve been sexually abused, beaten, mistreated, and they’re either left where they are or they’re picked up and placed with someone else who only sees the problems, they don’t see the journey. If we don’t acknowledge the journey, then we’re not actually creating a fair and just starting point for the healing to take place.”

The current justice system focuses on punishment first, rehabilitation second. It’s not enough, she argues, to have psychologists assess offenders once they’re already locked up. It’s often too late.

“It’s about punishment. It doesn’t allow for change. To access rehabilitation services – they’re not readily available on the outside – you have to be in jail already, and those services are available at certain points in your period of imprisonment, which is usually the end, and even then the service doesn’t always meet the needs of the person.”

Punitive not rehabilitative drug policy

Tuari Potiki, Chair of the New Zealand Drug Foundation and University of Otago Director of Māori Development, has witnessed the effect prison has on Māori communities. For five years, he worked as a Māori alcohol and drug clinician in a number of prisons in Christchurch. His experience in prisons sees him agree the system is heavily skewed towards punitive rather than preventive justice, and that means the people who most need help often get the least.

“For a while, there were more treatment beds for alcohol and drug problems in prison than there were out of jail. The prisons had 500 beds available, and even that’s laughable because they say that between 80% and 90% of prisoners have, in their lifetime, been alcohol or drug dependent, and there’s over 5,000 of them, so at the most those beds are going to take care of 10% of the population who might need help in prison.

“The current alcohol and drug system needs to change its attitude a bit. There are some services who won’t deal with prisoners, people on remand or people on court order, which is rubbish. If someone needs help, they need help.”

He believes legalisation of cannabis is the starting point in a much larger systemic overhaul that needs to happen in the justice system. It’s an opportunity to acknowledge publicly that what we’ve got isn’t working and that we must try something else.

“People acknowledge that the system is broken but they use different language, so they talk about unconscious bias or that there’s a skew in the statistics. 

"We all know the stats around Māori being more likely to be stopped, arrested, prosecuted, and there needs to be someone looking across all of that stuff and pointing out what’s happening and saying ‘this isn’t OK’.”

If the law is to change, it can’t happen in a vacuum. The various agencies that will be affected by the legislative change need to be engaged in the transition. To help break the cycle of trauma that often leads generations of families down the same destructive paths, there will need to be change in how drug users are treated, and that means easier access to help when people need it.

Cannabis was completely outlawed in New Zealand in 1965 as part of a global trend to prohibition. But it’s estimated that up to 300,000 Kiwis are still regular users. As the world saw in the 1920s with alcohol prohibition in the US, just because a substance is prohibited doesn’t mean supply will stop. It just becomes deregulated, much more dangerous, more costly to Police and places the money in the hands of gangs and other black market traders. This is what’s currently happening with the illegal cannabis market in New Zealand.

A report by the Helen Clark Foundation setting out the case for yes in next year’s referendum outlined the heavy reliance on Police discretion in our current drug laws and how this disproportionately affects Māori.

“In a population where the vast majority of New Zealanders at some point use cannabis, Māori are more likely to be stopped, searched, arrested and convicted for minor drug offences than are non- Māori,” the report states.

In New Zealand, the prison population is 52% Māori, while Māori make up just 15% of the general population. Of those incarcerated Mäori, 43% of those are in prison on drug-related charges.

Ex-cop’s change of heart

Former Police officer and ex-National Party MP Chester Borrows was appointed head of the Hāpaitia te Oranga Tangata Safe and Effective Justice Advisory Group in 2018. The group’s role is to engage in a public conversation about what New Zealanders want from our criminal justice system, canvassing a range of ideas about how it can be improved. This experience has seen Borrows, a self-acknowledged conservative, move his views to supporting legalisation at the referendum. From his experience in Police and then Parliament, Borrows knows the disproportionate prosecution of Māori is not a new phenomenon, and it’s about time the law was changed so it can’t continue to happen. Legalisation of cannabis would be the first step towards justice for New Zealand’s indigenous people still suffering under the burden of colonisation.

“The fact is if you take an economic resource off an indigenous people and you undereducate them or poorly educate them in a foreign language, then you relegate them to being withholden to occupations and work, which makes them the most vulnerable class in the country, and jobs keep changing and disappearing over time and those pressures move people away from familiar support. It’s not surprising then that, 100 years later, these people are corralled in the lowest decile communities, earning the least money, most vulnerable in terms of health and housing and the most likely to be represented in all the negative stats right across our country.”

Māori aged between 17 and 25 account for 37% of people convicted for possession or use of illegal drugs. It is estimated, via prisoner data from Statistics NZ, that the legalisation of cannabis will reduce Māori cannabis convictions by as many as 1,279 per year. Walsh sees this as a crucial step in giving our rangatahi back their opportunities for lives unhindered by the consequences of minor cannabis convictions.

“Simple things like education. Simple things like being able to leave the country. Simple things like having a job that you choose to apply for, not having to settle for something you know you have more potential than, but because of your history, they’re no longer available to you. To be seen as someone with integrity.”

Leading the charge

Chlöe Swarbrick is the Green Party drug reform spokesperson and one of the loudest, clearest voices on cannabis legalisation. The 25-year-old first-term MP has been campaigning since the beginning of 2018, when she first took over the Drug Law Reform portfolio, for a stop to the criminalisation of drug users and addicts. She says these people, some of the most vulnerable in our society, are being failed by those in the greatest seats of influence in New Zealand. It’s her mission to help the public understand why drug reform is about giving these people justice.

“To try and explain the evidence is a conversation that is complicated, it’s nuanced and it’s sometimes counterintuitive, which means that it doesn’t resonate within a soundbite media environment, which ironically offers the platform for the worst type of policy to continue to be proliferated.”

Swarbrick often gets frustrated with MPs taking the ‘politically popular’ route, especially when there are lives on the line.

“There has consistently been this back and forward of whether we do what’s right or whether we do what’s politically palatable. In the context of the synthetics crisis, we were talking about what was popular in the face of people’s deaths. It’s not just some hypothetical academic numbers on a spreadsheet, this is people’s lives.”

Borrows was never afraid to oppose the widespread views of his colleagues or party when he was in Parliament, and that hasn’t changed. He says politicians often disregard or refuse to listen to evidence to gain political capital, and they need to be held to account.

“Politicians will say ‘give us the evidence because we want to hear the evidence’, and then when they do something that doesn’t align with the evidence they say, ‘Oh, that’s a principled approach’.

“What we do need is to keep calling for the evidence and not accept that things are vicariously evidenced because they’re said by a policeman or by a politician with status.”

He’s disappointed that the current Opposition has resorted to rhetoric that is regressing the conversation. But he remains hopeful that a new generation of politicians are more open to dialogue about drug reform and what that means for New Zealand.

“The people who are in the middle of politics are seeing this differently than middle New Zealand politics have seen it before. They’re younger. They’ve got a different life experience. They’ve got a different understanding of crime and punishment, and I think they’ve actually got a bigger heart.”

Government has work to do

Addressing the parliamentary symposium on drug reform in September, Minister of Justice Andrew Little said the government had a lot of work to prepare for a successful ‘yes’ vote next year.

“It will be necessary to have a regime that affords maximum control so that the obvious risks can be minimised,” he stated.

These risks include easier access to cannabis, a potentially higher rate of drugged driving and potential for more employees to be under the influence while at work. And these are valid concerns.

Little wants those in the ‘no’ camp to realise these problems are already occurring under prohibition, and legalisation provides a chance to actively address and target them. “We know the risk to young users, but most older users do consume without suffering harm. 

Likewise with drugged driving. What else, in a totally prohibitionist environment, can we do to seriously address that risk? How do we operate an effective public health campaign on cannabis use if the starting point is, well, it’s prohibited so it can’t possibly be a problem?”

Harm is being caused regardless, and regulation of the market could make it a lot safer for those who do choose to use. It creates control over the market and a chance to regulate it. It’s a chance to invest in justice for those affected by the drugs rather than their punishment.

“The argument for change is that, after 54 years of prohibition, cannabis is well embedded in our communities. Young people have access to it, supply and distribution is largely controlled by criminal elements, users don’t necessarily know what the quality and safety of the product they are buying is and in any event, most users consume without harm, and the effort of Police enforcement is increasingly turning to more problematic and harmful illicit drugs such as methamphetamine.

“On this basis, it is argued that the best way to deal with the presence of cannabis and deal with the harm it can cause is to legalise and control it.”

If cannabis is to be legalised, the government will need a strong model for the regulation of the market. Some of the core elements of the draft legislation include a minimum purchase and use age of 20, restricted marketing and advertising, restricting use to private homes and licensed premises and conditions on private growing.

The government is looking at international examples of cannabis legalisation to create a market that’s both customised to our nation’s particular needs and beneficial to the demographics in New Zealand currently the most affected by prohibition laws.

Avoiding corporate monopolies

Much of the American market has been monopolised by large-scale cannabis corporations, but Swarbrick says this model will do more harm to those already suffering under our current laws.

She wants money made from cannabis sales to be filtered back into helping underprivileged New Zealand communities. Legalisation comes with economic justice too.

“We need to create a regulatory framework that doesn’t enable monopolistic big business, particularly from overseas, to sweep in and take over the market.”

Drug cultures are unique, and law reform must reflect that. Borrows agrees it’s crucial we stay aware of what’s happening overseas to see what’s working and what’s not and tailor international policies to fit the specific needs of the New Zealand market.

“We don’t think we can just uplift something from the States and drop it here. Their drug culture is totally different.”

The North American model of a regulated commercial cannabis market allows licensed retailers to sell cannabis for at-home use or to use at licensed premises. This is much the same as current alcohol laws in New Zealand.

In Uruguay, the government has a monopoly on the cannabis market, and it can be purchased over the counter via pharmacies. Purchasers are registered so data can be collected about their use habits.

New Zealand lawmakers can’t expect a cut-and-paste model from overseas to work here, and Little says a lot of work needs to be done to ensure a policy is designed that is fit for us.

The Drug Foundation has recommended an approach to the retail cannabis market to the government that would prioritise underprivileged communities, injecting jobs and industries into towns historically affected negatively by the War-on-Drugs laws. Swarbrick says this model would mean more money, jobs and opportunities at life outside of criminality for many rural Māori communities in Aotearoa. The most important thing for our leaders and lawmakers to consider, she says, is that Māori people are given key roles in the establishment of the emerging industry.

This is about providing justice to those communities that have been the victim of the War on Drugs for decades.

“We just need Mäori leadership. It’s not the place for this small Pākehā girl from Auckland to say what that should look like. There needs to be not just engagement, not just consultation, but partnership in the design of these regulations, and I’ve consistently negotiated with the Minister Andrew Little to ensure that is at the heart of this, but ultimately, the buck doesn’t stop with me.

“There needs to be the opportunity for kaupapa Mäori businesses, cooperatives and particularly regional Aotearoa New Zealand to play a role in the development of this industry.

“We have to be wary of the framing of it as an industry, because what we’re fundamentally trying to do is transplant something that currently exists on a massive scale in the underground market to place that within a legal framework, and that transition is going to take time.”

Earlier this year, Parliament passed the Misuse of Drugs Amendment Bill, signalling a significant change in how cases of drug use and possession are handled by Police.

The Bill is described on the Parliament website as placing greater focus on “those who import, manufacture, and supply the drugs, and not those who use them”.

“Addressing drug-related harm requires a health-based response, rather than a punitive one, so that people can access the health and social support services they need,” it explains.

This step is a crucial one to make if we are to create an environment that is well equipped to deal with the treatment of drug problems if cannabis becomes legal. The problem with this amendment, though, is that it still places the discretion in the hands of Police officers.

The conviction trap

Tuari Potiki is familiar with the ways in which the justice system grabs hold of people, and he’s seen how hard it can be to escape the gaze of authority once it’s decided you’re a target.

“If you get caught with a joint in your pocket, you knew that wasn’t why they wanted you, but they use that so they can get you and then bail you up with all this other stuff. The whole having to go to court and the way the justice system tries to get a hold of you and makes you feel like shit and they go at it in a way to remind you that they’re in control. It’s deliberate. A deliberate belittling.”

Potiki has seen many examples of where excessively harsh, judgemental treatment of people going through the system has become a self-fulfilling prophecy. “It’s like, well, if you treat me like that, I’m going to be like that. I’ve seen it when I used to work in the jails. It grinds people down and wounds them to the point where they become worse. 

So how do we change from where we are now into a country with laws that put victims first and that stops criminalising drug use, breaks the stigma around cannabis and makes a start on addressing the systemic racism that sees Māori disproportionately affected by drug prohibition? We talk to one another.

“In real life, even if most people have concerns, you can yarn to them about it and pull it apart and address that, and you realise that you all start from the same fundamental principles, which is that every New Zealander wants to make sure that their communities and kids are safe and protected, so if we start from that as a principle, we achieve that. Most people, when you talk through concerns, realise that prohibition isn’t working, and legalisation is the only way to change that,” explains Swarbrick.

So much political debate these days happens online, where the tone is so easily misconstrued, and marketing campaigns by organisations such as Family First attempt to equate the notion of the harm of cannabis with the notion of legalisation.

Swarbrick’s advice is to talk to people face to face. She’s yet to come across a demographic that’s been entirely shut off to the idea of voting yes in the referendum.

“Even in places like retirement villages, I’ve had really constructive conversations. This debate is going to be won or lost on a nationwide level on meaningful conversations on a one-on-one basis.”

Creating a fairer world

As drug reform progresses, justice must look into the past as well as the future. Reform won’t just mean a fairer world for our rangatahi to grow up in, but a world where those wronged by the War on Drugs are given another chance. For those with current criminal records relating to cannabis possession, supply and use, Swarbrick wants reform to mean a brand new start.

“Why would you want to shackle people for the rest of their lives to being criminals for something that is no longer illegal?” she says.

Potiki says criminal records, even for minor drug convictions, can have a serious effect on people’s lives, their ability to travel, get jobs and be confident in themselves. “When people go through a journey of healing, convictions become part of what was, and you just live with that. You can’t change things you can’t change, it’s just one of the scars you carry… but it can be embarrassing and shameful sometimes.”

Asked what a clean record would mean to her, Walsh has one answer. “Life.”

“It would mean being able to reach out and grab opportunities and possibilities to reach your potential that having a conviction for cannabis denies you.”

It would mean justice.