Three strikes

There is no doubt many New Zealanders will take comfort in the passing into law last week of the Sentencing and Parole Reform Bill. And if indeed the controversial Act New Zealand three strikes legislation enjoys such a popular mandate, that is understandable.

Crime, especially violent crime, is a slur on society, a source of primal fear and unease and, periodically, the cause of crippling grief, loss and financial hardship for innocent individuals and families.

As they have grappled with the complexities of crime and punishment, politicians have always understood its potency as a lightning rod.

National campaigned in 2008 on getting tougher on crime, and Act NZ, more specifically, put forward this law as part of its confidence and supply requirements.

Many politicians also know, having sat through select committees, listened to expert submissions and sifted through mountains of evidence, that the innate urge for punishment and retribution, often expressed in the popular call for harsher penalties and longer sentences, carries with it problematic baggage.

That is to say, while all agree it is right and proper to be tough on violent crime, that there is a retributive element to any punishment, that there are some recidivist criminals who will never respond to attempts at rehabilitation, the problem is not quite as simple as this law might seem to propose.

Its passage into legislation raises legitimate and fundamental questions: Is it good law? Will it make a difference?

The three strikes law will see first-time offenders sentenced and eligible for parole under the standard rules; at a second conviction, sentencing would observe the normal criteria, but with the jail term served without parole unless such a sentence were manifestly unjust.

A third conviction would automatically invoke the maximum sentence with no possibility of parole, again unless it was manifestly unjust.

The 40 offences in the schedule include serious violence, rape and other sexual offending, manslaughter and murder. The law does have a certain common sense appeal. How many chances does a violent criminal, wreaking havoc and distress on society and its citizens, warrant?

But in as much as it will sentence repeat offenders almost by rote, without distinction as to the particularities of their crimes, the circumstances under which they were committed, or the psychopathology of the individual offender, in many cases it will in fact deny the application of common sense - that which judges, with due regard for the law, are employed to deliver on behalf of the people.