David Seymour is having a swing at winning over voters with a reheated ACT law and order policy and bit of Rodney Hideism. Which recalls the last time ACT tried this on...

So ACT has decided to reheat it's disastrous policy from 2014, promoting a three strikes regime for burglars.

The policy was meant to land in a sweet spot of populism for ACT, as Jamie Whyte tried to take on Rodney Hide's mantle as a crime-bashing campaigner. But it was always an ill-fit. Whyte is more of a purist libertarian and the crime-bashing annex that Hide built onto the ACT house in an attempt to camouflage its libertarian economic mission never sat well.

In fact, Whyte butchered his first public discussion of the policy; an early indicator (along with his Ruminator ruminations on incest) that he wasn't temperamentally suited to politics, let alone campaigns.

On my first episode in charge of The Nation he revealed plans for this new policy, but knew nothing of the detail. He said:

“THEY’LL WORK LIKE ALL OTHER THREE STRIKE POLICIES. IF YOU DO THE SAME CRIME REPEATEDLY YOU GET A FULL LIFE JAIL TERM.”

 

Interviewer Simon Shepherd probed as to whether he really meant that a three-time burglar would be locked up for life and Whyte tried to change the topic; of course that wasn't the plan. And the re-heated policy now decrees that the third strike will mean a mandatory three year sentence.

 

But it's interesting David Seymour has decided to draft and push a piece of legislation like this. Law and order and the big state intrusion and cost to the taxpayer involved is an awkward fit for ACT's ideology.

 

Three strikes laws will mean more prisoners and more prisons, at a huge cost to the taxpayer. From an economic (if not a Catholic) perspective, Bill English has been trying to back National away from the 'lock 'em up' ideology so popular 5-10 years ago. So it seems odd that cost-cutting ACT would want to take on a policy that will require a lot of taxpayer funds.

 

The other point, of course, is that three strikes policies are banal; as if some baseball rule is anything more than a random and punitive approach to justice. What's more, as Lisa Owen's reports on Newshub this week have shown, much burglary is done by the very young. Is he really ready to lock up a 14 year-old three striker for their final three school years?

 

So it seems Seymour, who has thus far tried to rebuild ACT on its core principles, is not above a little Hide-like populism. While has had a very colourful, profile-raising and stabilising year in 2015, the polls gave him little succour.

 

Perhaps, after a year stuck at no more than one percent in the polls, he's ready to try a few things to reconnect with the New Zealanders who, after a year of looking quite sensible, are willing to look again at ACT's shop window.

 

I'm not sure this type of law and order policy has the cut-through it used to and so don't expect it to give him the result he's looking for, but at least he's not talking about locking up burglars for life. 

 

Comments (19)

by Stewart Hawkins on February 11, 2016
Stewart Hawkins

I agree that this will provide little "cut through" but it confirms ACTs position as the only party that sees NZ judges position their sentences for serious crime far on the lenient side of the position of the public. Three burglaries and only three years? It is highly likely a 3 time convicted burglar will have committed 30 or more similar offences. I think a 5 year non-parole minimum well worth tax payer funding. 

by Simon Connell on February 12, 2016
Simon Connell

But it's interesting David Seymour has decided to draft and push a piece of legislation like this. Law and order and the big state intrusion and cost to the taxpayer involved is an awkward fit for ACT's ideology.

I'm not sure if the fit here is as bad as you suggest. As I understand it, libertarian ideology is big on protecting property rights as one of the few legitimate roles of the night watcher state. That would explain the focus on burglary specifically. In terms of the taxpayer cost objection, I would not be surprised if the libertarian response was that the solution to that is found in private prisons. I don't think ACT is opposed to costs to the taxpayer per se, just ones that are wasteful and/or out of line with ACT's conception of legitimate functions of the state.

Now, if Seymour announced a three strikes policy for drug use, that would be quite a different story.

by Graeme Edgeler on February 12, 2016
Graeme Edgeler

But it's interesting David Seymour has decided to draft and push a piece of legislation like this. Law and order and the big state intrusion and cost to the taxpayer involved is an awkward fit for ACT's ideology.

People critique ACT policies like this a lot, it's a funny line, but I'm with Simon on this, it is entirely consistent with ACT's ideology,

ACT ideology sees a limited role for the state: protecting people (defence, police, justice), and securing property rights.

Now, in practice, they don't always meet this, but three strikes-type policies fit well within this tradition. People who kill or rob or violently assault others can be taken off the streets to fulfill the duty of government to protect life, and people who burgle can be taken off the streets to protect property.

by Tim Watkin on February 12, 2016
Tim Watkin

The point re property is well made; property rights are core to their values. That is consistent.

But if you're coming from a position of small government and individual liberty as a matter of principle -not just practice- then it jars at least a little. Whyte argued that individual liberties transcended even social taboos such as incest. Yet small time crims lose their liberty to what by today's standards is quite a draconian degree? Why are burglars singled out as not having the right to these libertarian protections?

And I'm not sure about ACT not being opposed to taxpayer spending per se. One of the most used lines is that the private sector always does it better and public spending distorts true market forces...

by Andrew Geddis on February 12, 2016
Andrew Geddis

A big problem with this policy is that everyone thinks they know what a "burglary" is ... you come home, your window has been smashed, your stuff has been rifled through and the necklace that Grandma left to you has been stolen. Which, it is true, is one sort of burglary. But as Graeme has pointed out, there's a lot of other actions that fall within the Crimes Act definition. He subsequently gave a real-world example of "a bunch of high school students who appear to have gotten drunk, and decided to have a party in the grounds of someone’s holiday home, using their spa pool, urinating, and breaking bottles."

To which we may add this real-world case, described in today's ODT:

A Queenstown labourer who ran to help his father after he was sprayed in the face with weedkiller by neighbour Alistair Hey was yesterday found guilty of burgling Mr Hey's garage.

...

Judge Mark Callaghan found Mr Clark's son, Rhys Timothy Clark (30), guilty of burglary after he entered Mr Hey's garage and removed a motorised skateboard immediately following the assault on his father.

He walked away with the skateboard, but less than a minute later returned to the access way on Hensman Rd, leading to Mr Hey's property as well as several others, and threw the skateboard down before walking away again.

Trying to impose a one-size-fits-all sentencing regime on an offence that covers such an incredibly broad range of potential actions is going to cause all sorts of headaches.

(Other point of note - yet another High Court judge has refused to apply the existing "3-Strikes" consequence for murder on the grounds that it would be "manifestly unjust" to do so. I've outlined previous instances of similar judicial reluctance here. You can bet that a "3-Strikes" regime for burglary would result in similar judicial push back.)

by Simon Connell on February 12, 2016
Simon Connell

But if you're coming from a position of small government and individual liberty as a matter of principle -not just practice- then it jars at least a little. Whyte argued that individual liberties transcended even social taboos such as incest. Yet small time crims lose their liberty to what by today's standards is quite a draconian degree? Why are burglars singled out as not having the right to these libertarian protections?

I think the ACT ideology provides some pretty clear answers to the questions you're asking here. Burglars are singled out for losing liberty because they are a threat to other people's liberty. I doubt that, viewed through the ACT ideology lens, burglars really are "small time crims", since they're interfering with other people's property, which is one of the worst things that you can do, because property is vital to ACT's conception of liberty. The ACT ideology doesn't provide a clear reason for singling out some crimes that don't clearly threaten other people's liberty - such as incest or drug-related crimes - but it does provide a rationale for singling out burglary. Burglary isn't just a "social taboo", it's a fundamental threat to ACT's conception of liberty, because liberty means enjoying your property.

I think you're finding an inconsistency only by focusing only on some parts of ACT's ideology instead of treating it as a whole body of thinking. ACT's positions of small government and individual liberty are inextricably linked to the concern for private property. For ACT, individual liberty involves enjoying one's private property, and a threat to private property provides both a justification for having a state that can interfere with personal liberty and prescribes the limits on when the state can make such interferences.

Perhaps there is something a bit weird about the position that, to promote individual liberty in general, you have to sometimes limit the liberty of particular individuals quite severely. I wouldn't describe that as obviously inconsistent or illogical though. If there is any inconsistency here, it's built into ACT's philosophy itself, rather than the inconsistency being between ACT's ideology and this specific burglary policy.

by Andrew Geddis on February 12, 2016
Andrew Geddis

@Simon,

But a consistent libertarian approach to burglary would seek to impose the maximal State protection for individual property rights through the minimally-liberty infringing means. In other words, lengthy jail terms for burglars should be the response if, but only if, two conditions are met:

(1) Such lengthy jail terms can be proven to prevent burglaries from occurring (otherwise there is a deprivation of individual liberty with no corresponding rights gain); and,

(2) There is no other criminal law response that would be at least equally effective in preventing burglaries from occurring while imposing less-liberty infringing consequences.

Don't know if the Act policy does this ground work ... but if it doesn't, then it is open to the challenge that it is simply pandering to the knee-jerk, retributive laura norder streak in NZ society rather than being a principled response to a threat to individual property rights.

by Simon Connell on February 12, 2016
Simon Connell

@Andrew

The ACT website has a write-up on the policy which claims that the three-strikes policy will prove a strong deterrent for burglary, which will result in fewer burglaries and fewer burglars in prison, which means a reduced cost to the taxpayer. It would also follow, I guess, that there would be a reduced cost in terms of infringing on the liberty of individuals by imprisoning them. Even if this isn't a perfect policy in terms of the conditions you set it, it could be suggested that it's a substantial improvement on the status quo in terms of the overall effect on liberty.

Whether you think they've done the work to make the strong deterrent claim believable is another question. The reasoning includes that:

Unlike some “spontaneous” crimes, burglaries are planned. If only unconsciously, burglars weigh the likely benefit (in the value of stolen goods) against the likely cost: that is, the penalty for the crime multiplied by the probability of being convicted.

Myself, I'm dubious of the claim that burglary is not a spontaneous crime (especially given the wide scope of the offence that you've already mentioned) and that burglars do unconscious cost-benefit analysis in the way described.

by Nick Gibbs on February 12, 2016
Nick Gibbs

I don't think this is a terrible strategy, after all he's only looking for an extra 3-4% of voters. Surely the law and order voter segment is as large as that. 

by Lee Churchman on February 13, 2016
Lee Churchman

But a consistent libertarian approach to burglary would seek to impose the maximal State protection for individual property rights through the minimally-liberty infringing means

That's untrue. The only consistent libertarian position is to impose state protection for whatever property regime the sovereign owners have agreed upon. In principle that can be pretty much any arrangement you can imagine and in practice it has historically meant the formation of modern states as corporate sovereign owners which grant citizens limited property rights.

A guy called Karl Widerquist has a hilarious paper on this called "A Dilemma for Libertarianism", which is more or less a complete takedown.

by Andre Terzaghi on February 13, 2016
Andre Terzaghi

Somehow I think waaayyyyy more thought has gone into the comments here than went into the actual policy. Or ACT's underpinning philosophy, for that matter.

by Graeme Edgeler on February 13, 2016
Graeme Edgeler

Whyte argued that individual liberties transcended even social taboos such as incest. Yet small time crims lose their liberty to what by today's standards is quite a draconian degree?

Consenual adult incest doesn't have a victim. Whyte saying that should be permitted was one of the few times I liked something he said during his time as leader. I was looking somewhat forward to having an MP like that. Disappointment soon followed, however.

More importantly, burglary (or at least, burglary of dwellings) is not a "small time" crime. It's pretty serious. And, to be honest, a sentence of three years for a repeat burglar of dwellings isn't draconian. It may even be on the low side!

by Andre Terzaghi on February 14, 2016
Andre Terzaghi

"Consensual adult incest doesn't have a victim."

Wow, that's one of the best invitations to a thread derail I've ever seen, But I'll take the bait.

Absolutely, consensual actions between equally empowered adults that don't affect anyone else doesn't create victims, and should be permitted. But there's very good genetic reasons why incest is close to a universal strong taboo, and indeed most wild animals have evolved some kind of behavioural/social mechanism to make incest unlikely in the wild. So our hypothetical victimless coupling actually carries the risk of producing a victim, either a pregnant female facing unwanted pressure to terminate the pregnancy, or a child with genetic disabilities.

In a society that's not yet up to the challenge of dealing with much simpler topics, such as psychoactive substances or recidivist property crime offenders, in a mature evidence-driven rational way, do you really think we're capable of considering the much more difficult and nuanced questions around incest?

by Stewart Hawkins on February 14, 2016
Stewart Hawkins

Andrew comments "(Other point of note - yet another High Court judge has refused to apply the existing "3-Strikes" consequence for murder on the grounds that it would be "manifestly unjust" to do so".

Given my understanding of the case - clear premeditation, clear extreme violence without consideration for consequence - I cannot think of a BETTER example of why this case should be part of the three strikes rule and why the public has lost confidence in judges' sentencing.

"Justice Wylie accepted the murder was not the worst of its type". That is another vote for ACT from anyone who just read that. I guess if it had been a beer bottle rather than a bourbon bottle smashed hard onto the little old man's head would that make m'learned friends think it was so much worse? Can this be appealed by the Crown??

 

by Andrew Geddis on February 15, 2016
Andrew Geddis

Can this be appealed by the Crown??

Yes.

by Flat Eric on February 18, 2016
Flat Eric

Myself, I'm dubious of the claim that burglary is not a spontaneous crime (especially given the wide scope of the offence that you've already mentioned) and that burglars do unconscious cost-benefit analysis in the way described.

Of course burglary is not a spontaneous crime. Routine burglars case properties to ensure that they enter and leave undedected; otherwise if someone is present, the crime can escalate to robbery with much more serious consequences. In addition, such burglars do not just wander around the target's property randomly taking stuff. They take what they know they can quickly fence, which means they have a contact who can fence, which means they know what they are about.

by Graeme Edgeler on February 21, 2016
Graeme Edgeler

Of course burglary is not a spontaneous crime.

An important part of the claim you are responding to is the words "(especially given the wide scope of the offence that you've already mentioned)". Given this, burglary can definitely be spontaneous. Eg the following factual scenarios are both burglaries:

  • A reveller at a popular beach on New Year’s eve gets drunk and rifles through someone else’s tent looking for alcohol after they run out.
  • Someone decides they want to buy a marijuana joint. They find a seller who is using the wall of an enclosed car yard to avoid being seen, and buy one off them buy passing them money through a hole in the wall.
by Chuck Bird on February 21, 2016
Chuck Bird

i am supportive of the original 3 strikes law but opposed to the proposed one promoted by Seymour.  If one looks at the strike offenses for violent and sexual crimes you will sex incest is missing.  I David Garrett well and he is no deviant.  I see they have included Sec  131 (1) sexual connection with dependent family member under 18 years.

However, Sec 130 Incest is missing.  I wonder if libertarian, Rodney Hide had anything to do with this omission.  

by Tim Watkin on February 22, 2016
Tim Watkin

Graeme, I still think harm to property is small time in comparison to harm to person and even life. It's all relative (especially if you go with you incest argument!).

Simon, on your point that ACT value property rights so highly... then logically you'd have three strikes for car crashes, when you damage someone else's car, and many other crimes. Why only burglary? 

Nick, you're right about the politics. But that was part of my point. In this one he's reverting to the Hide tactic, which he has thus far tried to avoid.

 

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