Targetting repeat offenders makes sense, but the three strikes bill has fundamental flaws that undermine our judiciary and make us less safe. That's right, less safe

A couple of years ago my teenage niece asked,"why do we call it a life sentence when people aren't in prison for the rest of their lives?" She was struggling to get her head around our criminal justice system. Sadly, many New Zealanders are in the same boat, and so there's limited understanding of the substantial changes contained in the government's three strikes bill.

The fact is that, despite the common cry, 'why doesn't life mean life in this country?', it already does. A life sentence means your freedom will be curtailed by the state until the day you die.

When, for example, Mark Lundy got a life sentence with a 20 year non-parole term for murder, many hear the "20 year" reference think that's how long he'll serve. But few violent offenders (I don't know of any murderers) are released after their first visit to the parole board, and some stay in far longer than their minimum terms.

I was told last year that of the 420-odd people currently in prison on a life sentence, something like 40 will never be released. Even now there are retirees in our prisons for crimes committed long ago.

Once someone sentenced to life is released, they remain on parole. Even an 80 year-old given a life sentence 50 years earlier will need permission to move home, change jobs, go on vacation... I've never seen this explained by those who campaign for tougher sentences; that detail always gets left out.

The best thing that can be said about the three strikes bill is that it's better and fairer than the version produced last year. You might add that the focus on recidivism is also appropriate as the stats show that the more you offend, the more you're likely to re-offend. For example, 62 percent of first-time offenders aged under 20 will be back in prison within five years; with recidivists it's 88 percent. It's the same in every age bracket, right through to the over-40s, where the comparison is 12 percent for first-timers and 50 percent for recidivists.

On that basis, it's reasonable to argue longer sentences – and therefore greater deterrence – for recidivists. (It's also reasonable to argue for better programmes in prison, but that's a different post). But is three strikes the way? There's good reason to conclude that it's not.

There's been plenty written about it's inherent unfairness (for example, if you commit assault-assault-murder in that order you get a longer sentence than if you commit murder-assault-assault), the safety of prison guards and the fact the bill would have failed to stop some terrible loss of life. But for me there are three main reasons for the three strikes bill to be struck out; three profound and worrying changes to our criminal justice system.

First, it fundamentally changes what 'life' means. It goes from a 'life sentence', as described above, to meaning life in prison for those on their third strike. Those are two very different things. Isn't it ironic that ACT, the party that reputedly stands for individual freedom, has won the greatest extension of state power over individual liberty that I can remember?

Second, through this bill represents quite a power grab by the government at the expense of judges. Again, ACT is making government bigger, contrary to its core ethos. Where judges could weigh the facts of an individual case, a specific life, and sentence an offender accordingly, now, they have been reduced to rubber stamps. They have no discretion on a third strike sentence, no discretion on parole for a second or third strike offender. In constitutional terms, the executive wing of our government has lessened the independence of the judicial wing, which is seldom good law.

Finally, the bill limits the use of parole. On a second strike an offender serves his or her full term and then is released, unsupervised; on a third it's 'throw away the key' time. That's just dumb. Research shows that those released on parole are half as likely to re-offend as those who serve their full term. So well done Mr Garrett et al, you've just made us less safe. Your need to look tough means that those recidivists released after their second strike are now more likely to commit a third.

Any one of those points should be enough to force this bill to be reconsidered, or at least should be used to humble the government as the bill passes through parliament. It's bad law and makes a mockery of this government's commitment to evidence-based policy. Sadly, Labour lacks the courage to fight this corner, so it will be left to the Greens and the Maori Party to act as opposition.

For a short time, the public desire for revenge will be sated; until the next high profile murder. Then a mob will again demand that politicians 'do something', some politicians' knees will jerk in a quest to win the votes of the angry, and this cycle will start all over again.

Comments (4)

by stuart munro on January 26, 2010
stuart munro

ACT stands for Advocacy for Corporate Taxevaders. The 'indiviual freedom' stance is a strategic rather than a principled position, which generally facilitates their agenda of externalising costs.

ACT's position on crime is designed to attract a proportion of the popular vote, and indeed many people are concerned with the rising crime rate and rising violence. By shifting the blame to offenders they hope to avoid an examination of the failed ACT economic policies that lie behind the burgeoning crime rate, and with the connivance of the Murdoch media, they are substantially succeeding.

Economists are fond of linking inflation to full employment - which is why NZ has enjoyed 5% plus for the last 3 decades - while in fact the major driver of local inflation has been the expansion of bank credit and its effect on the property market. But ask about links between crime, unemployment and social mobility and economists do not wish to answer.

Three strikes will fail, even if it were a credible strategy. Because the Key government presently maintains a 7% unemployment level, and the natural consequence of that in human misery is a new and higher crime wave. But then Key's a banker first, and a New Zealander second - like most of the governments of the last 3 decades. It's going to get a lot worse.

by Tim Watkin on January 26, 2010
Tim Watkin

I take your point about unemployment Stuart. Governments bust a gut and make all sorts of promises about cutting crime, but despite best (and worst) efforts, the tendency is for crime to rise a) in tough economic times and b) when the percentage of the population who are young men is higher.

I think it's more complex in ACT, however. It's a party trying to be two things at once. Rather than using law and order to hide their economic ideals, I think there's genuine tension inside the party between the Doulgas-led individual freedom fighters on one hand, and the Garrett-esque tough on crime types on the other.

by stuart munro on January 27, 2010
stuart munro

New Zealand governments have not made their best efforts on anything in my lifetime: not crime, not unemployment, and not, despite their vaunted claims, the economy.

ACT started out as a pack of barefaced liars who infiltrated Labour. The leopard does not change his spots, and neither do paedophiles or Roger Douglas - worse luck. The only genuine thing in ACT is its determination to live at the expense of everyone else.

by Graeme Edgeler on January 27, 2010
Graeme Edgeler

The best thing that can be said about the three strikes bill is that it's better and fairer than the version produced last year.

Or it's much worse, of course.

First, the three strikes bill introduced last year did not require life without parole for third strike manslaughter.

Second (and most importantly) what counted as a strike was fundamentally different. The version introduced last year only counted as a strike offending that actually resulted in (or would have resulted in) an actual prison term of 5 or more years. This drastically limited its scope. It really would only have applied to the very worst of the worst.

Five years' prison is at a higher level than you'll almost ever get for an indecent assault (the lowest level offence on the list) and worse than you'll often see for some robbery and aggravated burglary charges. People convicted of rape (max 20 years) don't always get 5 years. Bruce Emery - convicted of manslaughter - didn't get 5 years. None of these offences counted as strikes.

The new proposal is vastly expanded in scope. It counts as a strike minor offending falling within the various serious offences listed, and even counts as strikes convictions that don't result in prison sentences.

While the "manifest injustice" test will help avoid some injustice on the third strike, the ability of a judge under the scheme as introduced to determine "you have two strikes, but the appropriate sentence for this offending, committed some years after your first two strikes is 4 years' imprisonment, so this does not count as your final strike, and you will be eligible for parole" was much stronger.

This new proposal is vastly more punitive for the clear majority of people who will now be affected by it, than the old one ever was. The Government has taken a proposal that was harsh on a very small proportion of even the most serious repeat offenders, and made it less harsh on them, but much more harsh on many other - less serious - offenders. This is not a compromise - indeed, in respect of murder or manslaughter, it is harsher than either National or ACT campaigned on before the election.

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