James Farmer

Legal Commentary

Drugs, Sports and Society

Tuesday, October 18, 2016
I have just attended the 26th annual conference of the Australia and New Zealand Sports Law Association [ANZSLA], held this year in Wellington from 12-14 October 2016.   Around 150 lawyers, most of them from Australia but all involved with Sport, were there and an enjoyable occasion it was.   My thanks to the Attorney-General Chris Finlayson who, in opening the Conference, gave my racing yacht GEORGIA a plug as we prepare for the annual Coastal Classic race from Auckland to Russell this weekend.

My role was to chair a panel session on Selection Appeals, following the presentation of a most interesting paper entitled: “’I didn’t make the team.  What can I do?’ An overview of selection jurisprudence”, by Alan Sullivan QC of the New South Wales Bar.  Taking part in the Panel were Alan himself, Chantal Brunner (who is a former Olympian long jumper and a member of the New Zealand Sports Tribunal), Tara Pryor (a manager of the New Zealand Olympic Committee), Mark Weatherall (CEO of Canoe Racing NZ) and Zac Franich, who was a New Zealand kayaker who missed out on going to the World Kayak Championships last year because the kayaker who had been selected to paddle with him as a pair refused to do so because he wished to compete with another paddler who had not been selected.  

The appeal to the Sports Tribunal by the kayaker who wished to select his own partner notwithstanding the views of the appointed selectors was dismissed by the Tribunal but ultimately after further mediation, the selectors’ choices did get together but, unsurprisingly, their performance at the World Championships was less than optimum.  A sad outcome of the whole experience was that Zac gave up competing though has remained in the sport in other roles.

The Sports Tribunal, in Olympic year, certainly had a busy time of it, hearing 10 appeals, in a matter of weeks only, against non-selection by national sporting organisations.  So long as the selectors follow the procedures and criteria that are laid down for them and act rationally, the chances of a successful appeal by a disappointed athlete are slim as of course selectors know the sport and those taking part in it, unlike Tribunal members.  However, the Tribunal has been rigorous in requiring the selectors to adhere to their published processes.

The other major – indeed the major - topic at any sports law conference is likely to be drugs.  David Howman, who until very recently was for many years the Director General of WADA, spoke at the Conference as did Graeme Steel, the head of Drug Free Sport New Zealand.  There is no doubt, as the events leading up to the Rio Olympics demonstrated, the advantages obtained illegitimately by athletes using performance-enhancing drugs are causing major distortions in sports results and no sympathy can be extended to drug cheats.  

On the other hand, there are athletes for whom prescribed medication to deal with genuine illness or ailments ends up with suspension because not enough care has been taken either by the athlete or by the prescribing doctor to ensure that there is no prohibited component in the medication or that, if there is, that a therapeutic use exemption (TUE) is obtained.   The standard of care that is imposed is extremely high, as is evidenced recently in the high-profile instance of Maria Sharapova who had taken medication containing a substance that had been added to the prohibited list only weeks before.  She nevertheless initially received the mandatory 2 year suspension based on her failure to take steps to check whether her continued use of the medicine was permissible, though the Court of Arbitration for Sport has recently reduced the period of disqualification to 15 months.

We are right of course to be concerned about the use of performance-enhancing drugs in sport. There are the obvious dangers to health and also the inherent competitive unfairness.  

However, we are right also to show even greater concern at the increased use of drugs in society at large and at the major health impacts (including deaths) that result.  Of course, in this context, one starts with the premise that alcohol is a drug which can be addictive and that can readily lead to serious social harm.   Does acceptance of that fact mean that we should also accept the widespread use of drugs such as heroin, methamphetamine, cocaine and marijuana?  My answer is no.

In New Zealand, recent Ministry of Health figures reveal that there are about 26,000 meth users in this country with resulting hospitalisations tripling in the last 5 years (NZ Herald, 14 October 2016).  The recently published story of Haydee Richards who was a P addict through most of the childhood of her daughter Zara and the effects of that on both [NZ Herald 3 October 2016] is sobering and should make all of us determined to support the Government, the Police and all others to take every step possible to eradicate this truly horrible drug.  The same is true of heroin which was responsible for 953 deaths in New South Wales alone in the 5 year period of 1992-1996 (https://ndarc.med.unsw.edu.au/sites/default/files/ndarc/resources/T.R%20068.pdf).   

But what of marijuana, euphemistically described as a “recreational” drug and for which medicinal qualities are claimed?  

While research into the subject continues, there is strong evidence that the presence of delta-9-tetrahydrocannabinol (THC) in marijuana distorts how the human mind perceives the world and has particularly adverse and permanent effects on the developing teenage brain, leading in extreme cases to the triggering of schizophrenia. (If you are a parent of a teenager, have a look at this publication by the National Cannabis Prevention and Information Centre -https://www.youtube.com/watch?v=FvszaF4vcNY.)  The acknowledgment of the potential dangers to young people explains why even in those States in the United States of America where use of the drug is no longer illegal that is true only of adult use.  

I will put my cards on the table at this point and say that I am in the camp that opposes any legitimisation of the supply or use of marijuana.  My position is simply that lawful use and supply carries with it an implied acceptance by society that it is not a harmful substance and, indeed – so many of its supporters say – is positively beneficial.   

Now that is not to say that the use of marijuana by adults should be a criminal offence.  There are obvious practical difficulties about the concept of sending drug users to prison or even fining them for mere use alone, even where (as will inevitably be the case) heavy or regular use will have detrimental social and health problems.  The comparison with alcohol use with the criminal law reserved for situations where drunkenness may be a danger to the public (driving a motor vehicle or drunken behaviour causing disturbance in a public place) is a fair one.

In an article by Lizzie Marvelly in the NZ Herald (20 August 2016), some statistics are given that demonstrate the futility of imprisoning low-level drug users where the very fact of incarceration in a prison (sometimes called “The University of Crime”) is likely to do more harm than good to the offender.  It would seem to be the case that in New Zealand there has been a reduction in the number of cases where so-called low-level recreational drug users are imprisoned with the police taking a conscious decision to exercise a greater degree of prosecution discretion, allied with the diversion scheme.  

The establishment of the Alcohol and other Drug Treatment Court Pilot in 2012 has also played a major part in reforming policy and thinking about drug offences and relating them more closely to remedial measures than to the criminal sanctions.  (See the Litmus Report, “Formative Evaluation for the Alcohol and other Drug Treatment Court Pilot” by Lisa Gregg and Alison Chetwin and written for the Ministry of Justice in March 2014:http://www.justice.govt.nz/assets/Documents/Publications/alcohol-and-other-drug-treatment-court-formative-evaluation.pdf). 

Of course, drug use is often either causative of or accompanied by other criminal offending and imprisonment may be an outcome of the latter.  A hard line, however, continues (rightly) to be taken on methamphetamine, particularly on its manufacture and supply.   Will anyone argue that it is a drug that harms no one other than the user?   If so, consider again the story above of Haydee and Zara Richards, consider the seriously addictive features of the drug, consider how it causes paranoia and violence in users https://www.elementsbehavioralhealth.com/drug-abuse-addiction/links-between-methamphetamine-use-paranoia-and-violence/).   Consider further the economic loss from the need to decontaminate and even destroy houses rented to tenants (including State houses) who use them to manufacture the drug.  Consider the effects of addiction (including from heroin) on young women who are led into prostitution with the attendant dangers of that profession.

Marvelly refers to the experience of Portugal where the use of cannabis (and, in fact, other drugs) was, she says, legalised in 2001, with, she says further, a subsequent reduction in drug-related deaths and in drug use generally.   She uses this as a precedent for decriminalising the use of cannabis.  However, decriminalisation is one thing, legalisation is another.   Marvelly herself refers to the fact that persons in Portugal who are apprehended with even small amounts of drugs are “ordered” to appear before a “dissuasion panel or commission” consisting of legal, social and psychological professionals with repeat “offenders” being “prescribed” treatment. (See https://mic.com/articles/110344/14-years-after-portugal-decriminalized-all-drugs-here-s-what-s-happening#.ZqBzt6DlT.) That is, drug use in Portugal still carries legal consequences.   A legal regime with legal restraints remains in place but one which is clearly more attuned to more constructive and beneficial outcomes than the use of the blunt instrument of criminal law sanctions. 

It also needs to be noted that Marvelly’s description of the Portuguese reforms is not accurate.  Further, her claims of the benefits of drug decriminalisation in terms of reductions in drug deaths and use in Portugal are not universally accepted.  

First, apprehension of drug use continues.  Cases of consumption, purchase or possession of up to a 10 days’ supply of an illicit drug are referred to the dissuasion panel which has legal enforcement powers in the form of treatment, fines and warnings.  Trafficking and cultivation as well as possession of quantities exceeding 10 days supply remain criminal offences.    As to the claim that decriminalisation in Portugal – to the extent that it has occurred – has reduced the incidence of drug use and of drug-related deaths, the US Office of National Drug Control Policy says that it is difficult to draw reliable conclusions to this effect.  A decline in drug-related deaths had begun before the enactment of the reforms and there was in fact a new increase in them in the 2004-6 period after the reforms had been enacted.  The drug use figures are also ambivalent in that, while decreases in some age groups can be identified, they are matched by increases in other age groups.  (https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/drug-decriminalization-in-portugal-challenges-and-limitations)

Decriminalisation as such is not therefore the key determinant of any improvements in the incidence of and harm caused by drug use or, arguably, even a relevant one.   Professor Alex Stevens of the University of Kent argues that gains are more the result of improvements in health and social policies than in decriminalisation and refers to the conclusions of the European Monitoring Centre for Drugs and Drug Addiction, based on international research, that there is little correlation between the level of punishment for drug offences and the rate of drug use or drug problems. (http://blogs.lse.ac.uk/europpblog/2012/12/10/portuguese-drug-policy-alex-stevens/

There is also evidence from the United States that mere legalisation of marijuana use without any of the remedial and corrective machinery of the kind enacted in Portugal can trigger other unintended and undesirable consequences.   

In an article in Esquire on 9 August 2016 (reproduced in The Wall Street Journal on 19 August 2016), Don Winslow tracked the marijuana legalisation and decriminalisation reforms in the United States with the dramatic increase through the same period in overdose deaths from pharmaceutical opioids (165,000 increase from 1999 to 2014).  More people (47,055) died in 2014 from drug overdoses than in any other year in American history, a fatality level that matched the AIDS epidemic peak in 1995. 

Winslow claims that one effect of the ready, legal, availability of marijuana in many parts of the United States was that the previous suppliers of marijuana from Mexico found their market position substantially eroded by US domestic supply which did not face the problem of cross-border transportation.  Faced with that but recognising that an increasing number of Americans were becoming addicted to prescription opioids (which have the same basic characteristics as heroin), the Mexican Sinaloa Cartel increased the production of Mexican heroin by 70 percent and also raised the purity level (from 46% to 90%) and then, in what Winslow described as “classic market economics”, dropped the price (a kilo falling from $200,000 in New York City a few years ago to $50,000).    Now cheaper than legal pharmaceutical marijuana, pill users moved to the new heroin.  But neither they nor the existing heroin users were accustomed to the potency of the new product and hence the skyrocketing in drug deaths.  

Back to the other drugs said to be the precedent for legalising cannabis – alcohol and tobacco.    Matthew Hooton (NBR, 26 August 2016) points to the contradiction between those who support cannabis decriminalisation and who say that legalisation will lead to fewer people smoking it and the evidence that prohibiting tobacco smoking in an increasing number of venues has led to reduced tobacco consumption.  And how does one explain the apparent need for increased restrictions on drinking alcohol in city streets following the lowering the drinking age?  The Economist, in a column published on 13 February 2016, makes the point that those advocating legalisation do not confront the question of how a lawful cannabis trade should work.  Should cannabis sales be taxed and, if so, at what level?  Should advertising be permitted?  It is largely absent now in the underworld but in the legal world it could stimulate vast new demand.  There is also the problem that cannabis is no longer just smoked.  Entrepreneurs have cooked up pot-laced food and drink, says The Economist, reaching customers who might not wish to smoke the stuff and in higher and stronger concentrations. (http://www.economist.com/news/leaders/21692881-argument-legalisation-cannabis-has-been-won-now-difficult-bit-right)

As I write this, I ask myself the question: am I becoming increasingly conservative as I get older?  In pondering that question, I read that a millionaire Auckland businessman has paid $45,000 for cocaine for his personal use but is seeking name suppression to a charge of breaching the law because his company will be harmed by it being known that the person making key decisions for it voluntarily chooses to distort reality by snorting cocaine.  Is repulsion to a privileged member of society befuddling his brain conservatism or just a concern that his actions will affect others?  We expect our sporting heroes to be role models.  Why not our other leaders in society?

Jim Farmer

18 October 2016

Footnote: I would like to acknowledge the assistance of my two lawyer sons Leo and Hugo who provided me with some of the references and constructive comment on an earlier draft.  They are not necessarily to be attributed with sharing my views.

Georgia Racing

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