The Problem with Discretion

Last week’s change to allow CBD products to be prescribed by doctors continued to shake the media over the weekend.  This article from upped the rhetoric by focusing on Rose Renton, and her son, Alex, who was prescribed a cannabidiol extraction late in his illness but unfortunately passed away soon after.  Renton believes earlier use of the CBD may have extended his life.

The article moves on to Peter Dunne’s take on how the law is working for medicinal cannabis users:

“Dunne doesn’t want to see terminally ill users prosecuted for using illegal cannabis, and believes the law “works in the main”.

Police, he says, “effectively turn a blind eye” to low levels of cannabis possession.

“The problem is, every now and then you get a cop out in the regions who decides ‘I’m going to enforce the law as it stands’.”

Now, when he says the ‘turn a blind eye’ I believe he is applying that to all cannabis possession, not just medicinal.  His comments are a real backhander though. They basically say, ‘Well, you’ll probably get off, unless you’re an unlucky bugger.’  The law shouldn’t be based on luck. This discretion, while good in that less people are being charged with possession, creates injustice and the contempt for police and laws that comes with that, and is thus one of the biggest problems around current cannabis laws.

Although police deny it, with a spokesperson saying, “The role of police is to enforce the law and the police approach to cannabis has not changed,” it is well-known that police do not charge in all instances related to cannabis and for the last several years they have also had what is known as the pre-charge warning in their tool belt.  From the NZ Police website:

“A Pre-Charge Warning (PCW) is a formal warning given after arrest for a comparatively minor offence. This differs from traditional, more informal warnings given in the field, where the offender is not arrested; and the more formal Adult Diversion process, which is an outcome of prosecution following a court hearing. PCWs reduce the burden on Courts and the justice system by reducing the volume of prosecutions for less serious offences. The initiative particularly targets crimes often committed by offenders who are intoxicated, and many of whom have not previously offended. The lengthy and costly process for prosecuting these people can be seen as disproportionate to the circumstances, especially if it results in a conviction with implications for the individual’s future (e.g., with respect to employment or international travel). For Police, PCWs lead to less time spent on minor offending, freeing staff up to investigate more serious offences and undertake preventative work.

Since their introduction in 2010, PCWs have resulted in approximately 37,000 hours of Police time being freed up. This is the equivalent of an additional 24 full-time officers undertaking preventative activities, such as bail checks following up court warrants, and assisting in drug and organised crime-related operations.”

You may have noticed that the pre-charge warning system achieves many of the same things that a change in cannabis laws will do: reduce disproportionate outcomes for people’s futures, reduce burden on the courts, reduce police paperwork and so result in more productive police use of time and costs.

So, it’s a good thing, right?  Wrong.  The discretion that it invites is a gaping hole just waiting for injustice to jump right through it.  As Kim Workman of Rethinking Crime and Punishment says in this article on pre-charge warnings from the Drug Foundation, “I fail to see the difference between one person being warned for possession and another being charged.”

As the articles goes on to state: “A Police officer’s discretion is a double-edged sword. Police will use their discretion not to prosecute if the offender is regarded as low risk, but that carries socioeconomic and ethnic undertones.”  So, if you’re down or you’re brown, get out of town, pretty much.  Seems luck has a lot to do with pre-determined factors.

According to the Drug Foundation article, the Police were aware of this potential for racial bias right from the beginning – what Police Commissioner Mike Bush calls ‘unconscious bias’ – what has also been labelled ‘racism without racists’.  Six months in to the pre-charge warning system, it was already noticeable and four years later it is still present.  Maori are less likely to receive pre-charge warnings than non-Maori.  From an article on the justice system’s institutional racism at

From 2010-2014, police and justice figures show Maori made up 51 per cent of prison sentences, 40 per cent of prosecutions and convictions.

And yet, over the same period, Maori made up only 30 per cent of those who received pre-charge warnings – in other words, were let off – compared to 57 per cent of Pakeha.

Two people are found with a gram of weed on them: one is Pakeha, the other is Maori.  Because the Maori guy has a previous conviction (this is one of the conditions related to the application of the pre-charge warning, and one reason Maori more commonly don’t receive it – they are more likely to have a conviction), he’s dragged in front of the court while the young Pakeha fella walks free. The injustice of this both causes and perpetuates a huge degree of contempt for our police, our courts and our laws.   As does cannabis prohibition generally.

Discretion is an important and necessary part of policing and the court system.  Not all situations are the same, nor can they all be greeted with the same reaction.  However, discretion when it comes to what is unfortunately still such a ‘moral’ issue as drugs leads to the kind of situation Peter Dunne described where we “get a cop out in the regions who decides ‘I’m going to enforce the law as it stands'” (this is far from just an ‘in the regions’ thing though, I think!)  This is not like police using discretion when it comes to giving a speeding ticket – that instance of discretion might cost you $150 or so.  Discretion on a cannabis charge could be enough to make you lose your job.  It could ruin future opportunities for work and travel.

Whether one person gets lippy with a cop, whether they have a previous conviction, whether the possibility of a criminal record can be leveraged against them, these should not be considerations when it comes to charging someone with a crime.

There are huge costs inherent in cannabis prohibition already – the poor usage of police and court time, the serious disruption to people’s lives, and the contempt it creates amongst a part of society who probably most need to trust the police. Discretion only adds to these. It is time that both were dealt to by sensible cannabis laws that regulate its use, whether medicinal or recreational.









“Smithers, bring out the hounds!”

One of the biggest issues surrounding cannabis and any changes to the law governing it is that of driving under the influence.  It is often cited as a reason against changing the law, but people seem to conveniently forget that prohibition does little to stop this.  People are already driving around under the influence of cannabis.

The Cannabist, the site the award-winning Denver Post set up after legalisation in Colorado, recently reported on a start up called Hound Labs who have created a marijuana breathalyzer.  This is a new way of testing for cannabis use by drivers, which is usually detected by either saliva or a field sobriety test.  The article states:

“Technology already exists to test for THC — the psychoactive ingredient in marijuana — in users’ blood, saliva and urine. But the chemical can remain in those bodily fluids for days or weeks after smoking or ingesting marijuana, meaning a user risks being wrongfully accused of DUI even if he or she is no longer under the influence of the drug.”

Therein, lies the rub. Current testing regimes can and do provide false positives – people who have cannabis in their bloodstream but who are not impaired.  Colorado, for example has set the legal limit for THC at 5ng (nanograms) per litre of blood. Problem is, a regular smoker can always have this amount of THC in the blood, regardless of whether they have smoked in the last few hours or not.  This article by the Associated Press provides a good overview of the issues.

“There is understandably a strong desire by both lawmakers and the public to create legal limits for marijuana impairment in the same manner we do alcohol,” said Marshall Doney, AAA’s president and CEO. “In the case of marijuana, this approach is flawed and not supported by scientific research.”

New Zealand police still currently use field sobriety tests as their major way of detecting cannabis impairment.   However, this is set to change with the introduction of saliva testing.  These saliva tests can detect cannabis up to 12 hours after use, long after any impairment has dissipated, and have been challenged successfully in court.  And this article from The Canberra Times about a motorcyclist being wrongfully charged for drug driving after a crash is a good example of the negative externalities that drug prohibition can cause.

Hound Labs breathalyzer model may be the answer.  They claim that it can detect cannabis, whether smoked or ingested, on the breath, for just a few hours after use.  This could help put an end to the situation where people are arrested on drug driving charges not for being impaired but for simply having cannabis in their system. As one of their investors states:

“Groundbreaking science is necessary to make an accurate measurement of recently used cannabis, and Hound Labs is uniquely positioned to deliver a solution to the market that respects the needs of the enforcement community as well as the rights of legitimate cannabis users.”

‘Legitimate’ in this case being California, the world’s sixth largest economy, which legalised cannabis at the otherwise unfortunate 2016 U.S. election.

Prohibiting cannabis has helped create this situation.  Being illegal, legitimate research into how to test its level of impairment has been nearly completely stymied, and that has created a flawed method of testing that creates unfairness and has left countries like New Zealand unsafe.  We see this problem with research in the medicinal use of cannabis and in understanding its negative health impacts also.  It is only now that legalisation is spreading that companies are really able to work on technologies that accurately measure THC levels.