Discretion the answer to synthetics crisis?

The Government has struck a careful balance in its response to the synthetic cannabis crisis, cracking down on suppliers while promising a health-based approach for users. But there is some concern about whether putting discretion in the hands of police is the right approach, as Sam Sachdeva reports.

In “the war on synthetics”, the Government has found itself facing fire on all sides.

With over 50 deaths from synthetic cannabis in the last year, an opposition baying for a crackdown on drugs, and some health organisations pushing hard for decriminalisation or legalisation, satisfying everyone would seem near impossible.

But the Government’s response to the spike in deaths is notable for its attempt to thread the needle.

The two strains of synthetic drugs most commonly linked to recent deaths - 5F-ADB and AMB-FUBINACA - have been reclassified as Class A drugs.

That will give police additional search and seizure powers, while increasing the maximum penalty for suppliers and manufacturers to life imprisonment.

A temporary drug classification category, C1, is also being created, making it easier to bring new synthetic strains under the Misuse of Drugs Act with the resulting powers for police.

Along with the stick, there is a carrot of sorts - $16.6 million in funding for community addiction treatment services, including an $8.6m “surge” fund for emergency responses such as a spate of overdoses or deaths.

Equally significantly, the Government will amend the Misuse of Drugs Act to specify police should not prosecute users “where a therapeutic approach would be more beneficial, or there is no public interest in a prosecution”.

Attacking suppliers, supporting addicts

Announcing the suite of measures alongside Police Minister Stuart Nash, Health Minister David Clark underlined that mixed model as he talked about “unashamedly” attacking suppliers while “supporting those who are caught in the web of addiction”.

It may have been a case of coalition politics at play, with New Zealand First’s hardline stance on drugs set against the Greens’ preference for a health-based approach.

But the approach has also won cautious approval from most people on the front lines of supporting or arresting drug users and suppliers.

NZ Drug Foundation executive director Ross Bell said he was concerned with the Government’s initial pledge to reclassify some synthetic drugs, which would have “not only gone after the top guys but also given criminal records to people who use drugs”.

“They’re trying to find this neat way through where they split that out, so I think that’s right - I think it’s fantastic in fact that split they’re making in terms of greater police discretion.”

NZ Drug Foundation executive director Ross Bell says the problem with giving police greater discretion over drug users is how that discretion is applied. Photo: Lynn Grieveson

Police Association president Chris Cahill also offered “conditional support” for the changes, saying it was right to target the dealers and manufacturers while focusing on the health of addicts.

One area of concern appears to be around the codification of greater discretion by police - criteria which will apply to all illegal drugs, not just synthetics, so as to prevent a “perverse incentive” to switch from other drugs.

Bell said the weakness of discretion was the risk it could be “unevenly or inequitably applied” by police officers.

That was already the case with “police alternative resolutions” such as pre-charge warnings, he said, where Māori had lower rates of alternative resolutions and higher rates of convictions compared to similar, Pākeha offenders.

“This kind of halfway house where something remains a crime with severe penalties but police are told not to actually enforce the law, to use their discretion, is a Mickey Mouse solution.”

Nor was the inequity restricted to ethnicity.

“Geographically it can be quite different as well...there’s some police districts who provide more alternative resolutions, so depending on where you are, you might miss out because of where you live,” Bell said.

National police spokesman Chris Bishop said the Government’s approach would worry frontline officers and place pressure on them to make the right decisions.

“This kind of halfway house where something remains a crime with severe penalties but police are told not to actually enforce the law, to use their discretion, is a Mickey Mouse solution.”

Discretion 'a double-edged sword'

Concerns about the use of police discretion were shared by the Law Commission in its 2011 report on the Misuse of Drugs Act, which described the issue as “a double-edged sword”.

While some submitters told the commission that discretion minimised the costs and harms of prohibition, others argued “that the amount of discretion which currently exists simply provides an opportunity for unfairness, discrimination and uncertainty”.

“In this respect, it seems counterintuitive to rely on the exercise of police discretion to mitigate the harshness of the prohibition regime when that discretion is seen by many as part of the problem.”

Nash said drug users would still come to the attention of police, with the law change simply formalising the case-by-case approach that police currently took to prosecutions for minor drug offences.

Police Association president Chris Cahill says he is concerned the Government's proposed law changes are decriminalisation by stealth. Photo: Lynn Grieveson.

“Police aren’t going to wave at people as they drive down the street if someone’s smoking synthetics - they’re still going to get picked up, they’re still going to be booked.

“But in the past, police would send them to a judge. Now, if appropriate, they’re going to send them to mental health and addiction - that’s the difference.”

More politically concerning perhaps was the suggestion that the law change was “decriminalisation by stealth” - something Clark explicitly denied, but an argument that was nevertheless picked up by Bishop and Cahill.

“We think that if that’s [decriminalisation] what the Government wants to do, there needs to be a public debate about this,” Cahill said.

That public debate may yet come: either through the Government’s response to the mental health and addiction inquiry report, which recommended the decriminalisation of personal drug use, or the terms of a referendum on legalising cannabis which are set to be released before Christmas.

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