Legal Highs: Fixing Our Drug Laws

Drug laws are in a worldwide state of flux. Many nations and parts of the United States have begun to reform their drug laws, mostly beginning with cannabis. However, New Zealand, normally a bastion of liberalization, is stuck in 1970s. The NZPI here presents a comprehensive discussion of the issues with our current drug laws and a liberal solution.


Drug liberalisation is a trend growing around the world and for good reason: we are finally realizing that Nixon’s War on Drugs has been a failure. Many nations have made significant progress already: Portugal decriminalized all drugs in 2001 while states across the United States have begun to take baby steps in legalizing cannabis for medical and recreational usage. New Zealand, on the other hand, lags behind.

It is true that our drug laws have less significant progress to make than other nation’s. We, for example, have cannabis scheduled under Class C of our Misuse of Drugs Act while the United States has it, nonsensically, listed in Schedule I of their Controlled Substances above substances like cocaine and amphetamines. But still, we can improve.

Why should Kiwis go to jail at all – even if it is only for 3 months – for taking a substance that has no lethal dosage like marijuana? Or one that is harmful only to themselves? This is an inefficient use of our expensive prison system which costs over $90,936 per year, per prisoner11.

The New Zealand Powerhouse Institute sees the criminalization of narcotics as both an overreach of the state into personal affairs and an inefficient and, in fact, counterproductive use of government money.

When we incarcerate people for drug offences, it only makes them more likely to move into organized crime12 and gives them a criminal record which will damage their employment prospects forever and may well condemn them to a life of crime and/or welfare dependency.

See, if you look at the drug war from a purely economic point of view, the role of the government is to protect the drug cartel. That’s literally true.

– Milton Friedman

The criminalization of drugs also acts as Government protection of the drug cartels and organized crime. Organized crime proceeds from the sale of illicit drugs in New Zealand totalled $629 million in 2015, of which $70.4 million is reinvestment into further criminal activity13.

The prohibition of drugs also has negative effects on public health due to both the creation of newer, more potent narcotics and of unsafe mixtures by organized crime looking to increase profit 14 and the reluctance of users and their friends to seek medical assistance when overdoses and other ill-effects of illicit drugs occur.

Drug prohibition is also a fundamental overstep of the role of the state. The role of the state in the classical liberal philosophy, to which the New Zealand Powerhouse Institute subscribes, is conventionally understood to extend only to protecting citizens from others rather than from themselves. Where exactly do drugs fit in here? Drugs cause harm only, if at all, to their users. Now, of course, any democratic society has a degree of paternalism embedded in its Government and any democratically acceptable drug policy would have to involve an element of paternalism, however any parent that locked their child away for smoking a plant would be locked away themselves, what makes the State doing it any better?

Those who support the continued criminalization of drugs justify their position by highlighting harm done by drug users to others, however if this reasoning were applied rationally and consistently many other substances and products would be banned, including alcohol, of which harmful use costs New Zealand an estimated $4.9 billion per annum and takes up 18% of the Police budget 15, and there is zero mainstream support for a return to the flawed era of dry counties and Prohibition.

In essence, the majority of the ill effects to both users and others in society caused by drugs are the direct effect of their prohibition and could disappear with a common sense drug policy. Thus, New Zealand’s drug policy, while more reasonable than that of many other nations, is both economically and philosophically flawed and ought to be reformed. As is the habit of the NZPI, we offer the following liberal solution, which enhances personal freedom while reducing societal harm and governmental expenditure.

Examples We Drew From

Our plan follows the successful experiences of Portugal, the Swiss Confederation and many states in the United States, who have seen dramatic decreases in drug harm to both users and society in general after adopting more liberal drug policy.

The most moderate drug liberalization we drew from occurred in Switzerland, one of the most conservative countries in Europe. The Swiss drug policy of ‘prevention, therapy, harm reduction and prohibition’, while less effective than the others we have drawn from, has successfully achieved its goal of reducing harm from illicit drug usage. The country has slashed both HIV infection rates from infected needle usage and overdose mortality by more than 50% with over 70% of the nation’s cocaine and opiate users receiving treatment 16. The policy, while it could be improved and liberalized further, has been an effective solution to what was a growing issue in one of the most prosperous nations in world and has wide public support17.

The largest scale example we drew from in the formulation of our comprehensive plan for drug liberalization occurred and continues to occur in the United States. The original home of anti-drug legislation, drug laws at a state level in the United States have been liberalizing throughout the Obama administration. These efforts have focused on legalizing the least harmful illicit drug, marijuana, and at the date of issue referendum on the issue have been successful in Colorado (2012), Washington (2012), Alaska (2014), Oregon (2014), Washington, DC (2014), California (2016), Maine (2016), Massachusetts (2016), and Nevada (2016)18. Legalization has been successful across the country, with no discernible change in consumption, teen usage in fact decreasing, increased taxation revenue, decreased correctional and law enforcement spending on drug issues and no discernible negative effects on crime, road safety and the economy 19.

Our final and most radical example from which we drew occurred in Portugal in 2001 where the small-scale possession of all drugs was decriminalized. They remained illegal, but the Portuguese government treated the possession of them as a public health matter and an administrative violation rather than a criminal matter. The reforms have been a resounding success. Lifetime prevalence rates of most drugs have decreased since the reforms as have drug-related mortality rates. Compared to the rest of Europe, Portugal in fact has lower cannabis and cocaine prevalance rates for both the overall and youth population20.

The reform proposed by the New Zealand Powerhouse Institute draws from all three of these differing examples of successful drug legalization in the West, and is as follows:

Our Proposed Reform

The Misuse of Drugs Act, and other related provisions in other pieces of legislation would be repealed and replaced by a new simplified legislative framework, the Drugs Act. This new act would create a new Controlled Substances Agency under the Minister of Health to subsume all central Government responsibilities for all controlled substances including pharmaceuticals, tobacco and alcohol, except for enforcement which would remain the responsibility of the Police and the, now in cooperation with the CSA and health promotion, responsibilities for which would be shared between the CSA and the Health Promotion Agency. The CSA would be formed with personnel from the Police, MedSafe (which, while losing its pharmaceutical regulation duties would retain its duties related to the safety of medicines and medical devices,) the Health Promotion Agency and the wider Ministry of Health.

The CSA would be managed by a Director with medical expertise. It would also include an Substance Policy Board consisting of the Director of the CSA, the Director-General of Health, the Prime Minister’s Chief Science Advisor, the Chief Executive of Health Promotion Agency, the Commissioner of Police, the Chief Executive of the Department of Corrections, the Cabinet Secretary and the Secretary of the Treasury. This board would be charged with creating whole-of-government policy regarding controlled substances and for advising ministers on matters related to controlled substances.

The Drugs Act would create a licensing system for drug treatment centres. These centres would be private enterprises staffed by qualified doctors, nurses, psychiatrists and others and they would, in some cases, be subsidized by the Government. Such Accredited Drug Treatment Centres (ADTCs) would be granted special exemptions to the new rules regarding the dealing and growing of different drugs. Entrepreneurs wishing to start a ADTC would be required to meet good character requirements and submit to the CSA details of how they intended to purchase and store the drugs. Employees would also be required to submit to background checks and harsh penalties would be imposed on both employees and centres who improperly distributed drugs.

The Drugs Act would create a three tiered system for the legality of drugs. In Tier 3 would be cannabis and any other drugs with similarly low harm levels, while Tier 2 would include other drugs with higher levels of harm with pharmaceutical uses and Tier 1 would include more harmful drugs without pharmaceutical uses, including methamphetamine, cocaine, heroin and others. Drugs could be moved between these tiers by the Substance Policy Board with the approval of the Minister of Health. Drugs would by default be in Tier 2. Tier 3 drugs would regulated similarly to tobacco and alcohol, specifically with the following restrictions:

  • Required licenses for the sale of drugs, administered similarly to liquor licenses.
  • A full ban on advertising and sponsorship.
  • An age restriction for the purchase, possession and use of drugs of 21 (On a per drug basis ).
  • A tax on the sale of these drugs, set at an appropriate level advised by the SPB.
  • Any other restriction advised by the SPB and accepted by the Minister of Health.

Meanwhile, Tier 2 drugs would be restricted similarly to prescription drugs today, with a doctor’s certificate required to purchase them. ADTCs would be permitted to prescribe these drugs as a safer substitute for those addicted to more dangerous Tier 1/2 drugs and those found in possession of them, without a prescription, would be subject to the same measures as described below for Tier 3 drugs, with lower fines and a higher tolerance limit dependent on the specific drug.

Tier 1 drugs would now follow the Portuguese model of decriminalization whereby the possession of small amounts – the specific amount would depend on the substance and would be determined by the Substance Policy Board based on medical research – of these drugs without a or in excess of their ADTC prescription would become a summary rather than criminal offence. Dealing, producing and otherwise profiting by non-ADTCs from Tier 1 drugs would remain a serious criminal offence. Those caught using Tier 3 drugs without prescription for the first time would be required to submit to an ADTC for an assessment. If they were found to be addicted, ADTCs could embark on a course of drug-replacement therapy and rehabilitation, while if they weren’t they would be released with a warning. Recidivist possession offenders would be charged with higher fines and could be compulsorily contained in ADTC rehab.

Analysis of Our Plan

Costs to the Taxpayer

Our plan would result in lower costs for the New Zealand taxpayer. It would reduce expenditure on incarceration and law enforcement for drug use and would reduce expenditure on the benefit dependence often caused by imprisonment. It would increase expenditure on drug and addiction treatment but this would be more than balanced by the reduced expenditure on other areas and the taxes levied on Tier 3 drugs.

Effects on Drug Users and Their Families

Our plan would result in better outcomes for drug users and would allow them to contribute to society in a more meaningful manner. Our decriminalization and legalization model means users would. in general, avoid imprisonment and a criminal record allowing them to contribute to society in employment and not be a drain on the benefit and social security system. Those addicted would be able to improve their health and lose their dependence through the treatment-based approach.

Our plan would also allow users of more harmful drugs (Tier 1/2) to continue to provide for their families while undertaking treatment, lessening the load on the Child, Youth and Family system and improving outcomes for their children.

While our liberal core is offended at compulsory treatment and the continued illegality of a subset of drugs, it must be so in order to protect society and to enable the plan to even be considered in a democratic society. We believe our plan strikes an appealing, democratically-acceptable and rational balance between liberalism and paternalism.

Footnotes

  1. Howard League – The state of the nation’s prisons
  2. Michael Neminski (Boston University) – The Professionalization of Crime: How Prisons Create More Criminals– n.b: this essay is on the American experience however its conclusions are equally valid in New Zealand
  3. McFadden Consultancy for the Ministry of Health – Research Report: The New Zealand Drug Harm Index 2016
  4. Randy E. Barnett (Georgetown University) – The Harmful Side Effects of Drug Prohibition
  5. Auckland Regional Public Health Service – Alcohol Factsheets
  6. Joanne Csete (Columbia University) for the Open Society Foundations – From the Mountaintops: What the World Can Learn from Drug Policy Change in Switzerland
  7. Swiss Federal Office of Public Health – The Swiss drug policy: A fourfold approach with special consideration of the medical prescription of narcotics
  8. Legalization – NORML.org
  9. Angela Dills, Sietse Goffard, and Jeffrey Miron (Cato Institute) – Dose of Reality: The Effect of State Marijuana Legalizations
  10. Glen Greenwald (Cato Institute) – Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies
  11. Howard League – The state of the nation’s prisons
  12. Michael Neminski (Boston University) – The Professionalization of Crime: How Prisons Create More Criminals– n.b: this essay is on the American experience however its conclusions are equally valid in New Zealand
  13. McFadden Consultancy for the Ministry of Health – Research Report: The New Zealand Drug Harm Index 2016
  14. Randy E. Barnett (Georgetown University) – The Harmful Side Effects of Drug Prohibition
  15. Auckland Regional Public Health Service – Alcohol Factsheets
  16. Joanne Csete (Columbia University) for the Open Society Foundations – From the Mountaintops: What the World Can Learn from Drug Policy Change in Switzerland
  17. Swiss Federal Office of Public Health – The Swiss drug policy: A fourfold approach with special consideration of the medical prescription of narcotics
  18. Legalization – NORML.org
  19. Angela Dills, Sietse Goffard, and Jeffrey Miron (Cato Institute) – Dose of Reality: The Effect of State Marijuana Legalizations
  20. Glen Greenwald (Cato Institute) – Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies
  21. Howard League – The state of the nation’s prisons
  22. Michael Neminski (Boston University) – The Professionalization of Crime: How Prisons Create More Criminals– n.b: this essay is on the American experience however its conclusions are equally valid in New Zealand
  23. McFadden Consultancy for the Ministry of Health – Research Report: The New Zealand Drug Harm Index 2016
  24. Randy E. Barnett (Georgetown University) – The Harmful Side Effects of Drug Prohibition
  25. Auckland Regional Public Health Service – Alcohol Factsheets
  26. Joanne Csete (Columbia University) for the Open Society Foundations – From the Mountaintops: What the World Can Learn from Drug Policy Change in Switzerland
  27. Swiss Federal Office of Public Health – The Swiss drug policy: A fourfold approach with special consideration of the medical prescription of narcotics
  28. Legalization – NORML.org
  29. Angela Dills, Sietse Goffard, and Jeffrey Miron (Cato Institute) – Dose of Reality: The Effect of State Marijuana Legalizations
  30. Glen Greenwald (Cato Institute) – Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies

One thought on “Legal Highs: Fixing Our Drug Laws

  1. Nice thinking around tiers. A new class was created before Labour’s last term ended under Helen Clark which created Class D with the intention that this new class will contain cannabis alcohol and tobacco but it disappeared and was never implemented. Maybe do some research into this.

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