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Police are Letting More People Off For Cannabis, Except Māori

Officially, and unofficially, New Zealand police are using discretionary powers to bring down prosecution rates but this de facto decriminalisation has a major problem.
Photo via Flickr user Heath Alseike

WEEDIQUETTE, our show about the science and politics of weed, is now showing on VICELAND. Tune into SKY Channel 13, Sky Go and On Demand for more.

We all know weed is illegal in New Zealand. Penalties for a conviction can range from a few hundred dollars fine for possession to 14 years imprisonment for supply. But, if you ever find yourself the subject of a police raid where small amounts of cannabis (even the higher class B cannabis oil) are found on you and/or you're found cultivating cannabis and you happen to have no criminal record and live in a nice enough neighbourhood where people don't really do that kind of thing (officially speaking), you'll probably find yourself getting a police diversion according to the police's official adult diversion scheme policy: walking out with little more punishment than maybe a couple of sessions of counselling.


Official police diversions are discretionary means to stop people from getting convictions—heading straight to jail without passing Go or collecting $200—just because they made a small, illegal mistake that one time and got caught doing it. It's mixture of mercy and a means to curb the swelling prison budget and population.

Unofficially, some police officers are also executing their own form of casual diversions while on duty. In the September 2016 edition of the Police Association's magazine, Police News, an anonymous frontline police officer wrote: "My view of cannabis, in particular, has changed dramatically over the years. Initially, I had a zero tolerance approach. Anyone I found with a tinny would find themselves before the courts. Now, however, I am more likely to tell them to get rid of it in a nearby drain and be on their way; much like I treat those breaching liquor bans." A spokesperson of the Police has stated that this does not follow official police policy, but it does not mean that it is not happening on a casual basis.

Together, these two strands of official and unofficial diversions have seen arrests for cannabis possession half from 1994 to 2014—a percentage drop completely unaffected by actual use: use rate has stayed stable for that same period, according to the Ministry of Health. Prosecution rates for drug use in general also dropped to a third during that period.


While many who form part of the 11 percent of the population who enjoy a reefer on at least a yearly basis may do little celebratory shimmies at that revelation, the discretionary diversions (which have been labelled as the de facto decriminalisation of cannabis use) are problematic, decriminalising cannabis mostly just for the white elite.

This is not a throwaway accusation. It's not easy to draw a tidy, direct line between the police's discretion to not charge and racial and class bias. A range of important, influential factors can affect police's discretionary decisions—the person's history of previous offending, their responses to previous sentences and the social circumstances of the offender. Which is perhaps why it took a 21-year long study by Fergusson for Drug and Alcohol Dependence to make the connection.

Released in 2003, the study examined the relation between the self-reported use of cannabis, and the rate of arrest and conviction for cannabis-related offences. Independently of self-declared cannabis use, Māori were more likely to be arrested and convicted for cannabis use. Having a police record (for violent or property offending) or being a man also increased the likelihood of arrest and conviction.

Racial bias comes into play both through frontline police arrests and how those arrests systematically entrench that bias further down the line. According to the Corrections Department's 2007 Over-representation of Māori in the criminal justice system report, drug offending is a type of offending "in which the vast majority of offenders are apprehended directly as a result of police activity, rather than by way of crimes being reported by the public". Māori, which form just under 15 percent of the population, make up 40 percent of those arrests—which means that Māori are being particularly targeted for drug offending by the police—especially cannabis use, as Fergusson pointed out.


A trailer for the shows now showing on VICELAND on SKY, including WEEDIQUETTE.

One explanation found in the Corrections Department report is that certain culturally influenced behaviours—such as hand gestures, clothing, hairstyles and facial expressions, may trigger police suspicion—leading them to hound people showing those behaviours more often. Police cooperation is also a significant factor in police deciding to arrest and take further actions—as both police officers and Māori have been found to generally have negative perceptions of each other which aggravates the problem. Police also profile Māori offenders more readily, also paying closer attention to Maori which they have arrested or prosecuted in the past—which is linked to about a 20 percent higher rate of reconviction for them than New Zealand Europeans.

A Police spokesperson acknowledges that "as an an organisation, it is important to recognise the potential for unconscious bias, which describes the instinctive judgements people make based on their own experiences and backgrounds, and is something every human inherently has. [The] NZ Police continues to look at the impact of unconscious bias on our organisation and the delivery of training to staff on managing unconscious bias."

Yet until this bias is fully eradicated, its effects will continue to be seen in the diversion scheme. Maori may get lucky and get a diversion on their first arrest for possession, but with the odds against them, this luck runs out quickly. Once in the system with a conviction, those past convictions trail behind offenders, and are used against them if they ever set foot in a police station or court again. In relation to diversions, past convictions are used as an aggravating factor to decline a diversion, which amplifies the initial racial bias the police had against Maori offenders in hounding them in the first place.

Māori already take up a disproportionate percentage of the prison population. The fact that they get disproportionately targeted by the police means that their convictions can easily get locked in on a spin cycle, which further pushes up their numbers in jail. As at 2008, the latest stats, the Corrections Department puts New Zealand's imprisonment rate at approximately 180 per 100,000. Yet the rate that applies specifically to Māori is about 700 per 100,000.

Police diversion might be a good thing in some respects, saving a lot of casual cannabis users who in all other respects are upstanding members of society from getting a criminal record. But it's also a mess. It doesn't really matter too much whether you're anti or pro cannabis use, this form of practical decriminalisation isn't decriminalisation if it's only for the white elite—it's discrimination.

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