It’s hardly surprising that a law with racist roots has gone on to produce racist outcomes, writes Tim McKinnel, a former policeman and drug squad detective.

As we approach the 2020 election and the Cannabis Legalisation and Control Referendum, many of us are beginning to contemplate how we’ll vote. 

“Yes”, to legalise and better control cannabis. Or “no”, for a continuation of laws that originated in racism, tend to perpetuate harm in the community, and demonise rangatahi Māori. 

A critical issue for me, in making a decision on which way to vote, was learning the history of cannabis prohibition. As a former police officer and drug squad detective, I was ignorant of the racist roots of cannabis criminalisation, and had little understanding of how the current laws entrench racial inequality in our society. 

While many of us would like to think that cannabis was criminalised following a rational assessment of harm and risk to individuals and communities — with benevolent states outlawing the plant in an effort to protect citizens — the historical reality is far less scientific and rather more sinister, both in its foundation and execution. 

Around a century before the racist buffoon presently occupying the White House advocated building a wall on the Mexican border, similar racist dogma was a primary driver in the prohibition of cannabis in the United States. 

Following the Mexican Revolution in the early 20th century, there was an influx of Mexicans into the southern states of the US, bringing with them many of their customs and cultures — including the use of “marihuana”, which was used both medicinally and as a relaxant. 

Some US government officials, like the hateful racist Harry Anslinger, who headed the Federal Narcotics Bureau for more than three decades, saw cannabis as an opportunity to demonise immigrants, African Americans, and other ethnic minorities. Anslinger (and others) linked cannabis to racist tropes involving Black men and sex and violence — and he was aided and abetted in that by the mass media, which lapped up his nonsense. 

In contrast, the early years of cannabis prohibition in Aotearoa were relatively benign. We generally observed international conventions and norms with a variety of laws prohibiting the possession and use of cannabis. (Meanwhile, Eurocentric drugs, like alcohol, flourished on an industrial scale.) 

But this was beginning to change by 1965, with the introduction of the Narcotics Act. The new law heralded a tougher approach to drugs, including cannabis. It introduced powerful new search and seizure provisions, including the power to search without a warrant and the onus being put on a defendant to prove they weren’t a commercial drug dealer if they were found with more than around 28 grams of cannabis in their possession. This was a draconian reversal of the burden of proof.  

In 1971, American president Richard Nixon had launched what was to become the never-ending, US-led, global “War on Drugs”. Within two years, US prison populations surged, growing exponentially over the next three decades. African American and Hispanic prisoners made up almost 60 percent of all prisoners.

As the War on Drugs spread its ugly tentacles, New Zealand again updated its drug laws with the Misuse of Drugs Act in 1975, which continued and expanded police powers.

These developments, combined with the broader adverse impacts of colonisation, produced a set of legal and social conditions that were ripe for racist outcomes. And so it has proved to be.

The rise in Māori incarceration rates coincided with post-war urbanisation. By 1971, 40 percent of all prisoners in Aotearoa were Māori. However, by 1980, that situation had worsened — 60 percent of the prison population were now Māori and Pasifika.

In 1987, Moana Jackson’s groundbreaking paper The Maori and the Criminal Justice System described the sociological and institutional conditions that led to Māori overrepresentation in the criminal justice system, including the dramatic rise of Māori in prison. 

While Moana’s paper didn’t explicitly address cannabis, there’s little doubt that it became a driver for rangatahi Māori to be thrust into the criminal justice system — and prison. 

I know this, in part, because I played a role in it, something that sits heavily with me.

In the late 1990s and early 2000s, I was involved in enforcing drug laws in the socio-economically deprived areas of South Auckland. As part of the never-ending game of drug enforcement whack-a-mole, we would set up mini operations to bust gang-run tinnie houses. 

The scenario would go something like this. We’d patrol on the lookout for vehicles leaving areas where we suspected tinnie houses were operating. It wasn’t hard to spot the late model Toyotas and Mitsibishis, driven by Pākehā kids from Howick or Pakuranga who’d ventured to the Southside, Ōtara, to buy some weed. 

We’d stop them as they were leaving, and would often find their tinnies hidden under the driver’s seat. And, then, in a fairly congenial exchange, we’d trade them their stash and the address of the tinnie house for an informal warning, before sending them back to middle-class suburbia — their liberty, reputation and future job prospects unscathed. 

A few days later, we’d be part of a team crashing through the doors of the tinnie house with a search warrant. The results were almost always the same — young Māori or Pasifika kids from low-income homes who were peddling cannabis would be arrested and prosecuted. And, soon after, they’d be labelled by the system as drug dealers and gang associates. 

At the time, it was exhilarating work, and I told myself we were cleansing the streets of harmful drugs. The irony of causing one form of harm in an attempt to reduce another sort of harm didn’t occur to me.

I know that personal anecdotes and reflections on the part I played in the war on drugs are of little value when systemic change is being contemplated. 

Fortunately, there’s a wealth of robust evidence that demonstrates the criminal justice system is institutionally racist when it comes to cannabis. While much of it is cloaked in moderate and cautious academic language, the evidence on the way cannabis laws are enforced and adjudicated in Aotearoa is clear.

Māori — rangatahi in particular — are arrested and prosecuted more than their non-Māori peers, sentenced more heavily, and see discretionary powers used disproportionately in favour of non-Māori.

On top of that, cannabis laws, over the many years they’ve been in force, have done nothing to stem the persistent and widespread use of cannabis in our communities. 

It’s hardly surprising that a law with racist roots has gone on to produce racist outcomes. We’ve known about this for decades, yet little has changed. With this in mind, it’s difficult to escape the conclusion that our cannabis laws have been yet another tool of colonial oppression.

A “yes” vote in the upcoming referendum to legalise and control cannabis outside of the criminal justice system is a rare opportunity to change that. 

It will allow us to address the many harms and costs that proliferate because of cannabis prohibition — and, at the same time, provide an opportunity for those harmed by cannabis itself to openly seek help and treatment without fear of being criminalised. 

A legal marijuana dispensary in downtown Vancouver, Canada. (Photo: City Cannabis)

Tim McKinnel is a former South Auckland police officer and detective. He holds a master’s degree in criminology. He’s an investigator and director at investigation consultancy Zavest, where he specialises in human rights and wrongful conviction cases. Tim spent six years leading the investigation into the wrongful conviction of Teina Pora. He is not a cannabis user. 

© E-Tangata, 2020