Strike three

It is surely unintended by the Government but nonetheless revealing that the proposed new sentencing law which bears some resemblance to that put up by Act New Zealand and its extra-parliamentary proxies, including the Sensible Sentencing Trust, is being promoted with the slogan "Three Strikes and the Max".

It could be an advertisement for matches, or a fishing rod, or perhaps the latest PlayStation fad.

In fact, with its triumphalist tone and the reductionist thrust typifying the simplistic philosophy underpinning it, the catchphrase would contrive cheerfully to consign to the dustbin many of the nuanced complexities of this country's Sentencing Act - supposedly in the name of "justice" - by legislating in fine detail precisely who should go to prison, for exactly how long and under what circumstances.

That the hard-line impulse of a small but vociferous minority should not only get its foot in the door of such critically important penal reform, but should be allowed to trample over carefully developed sentencing arrangements - without coherent evidence to suggest that its gambit will do anything to reduce serious crime, indeed may well increase it - speaks volumes not only of the triumph of ideology over common sense, but also of Prime Minister John Key's elastic political pragmatism.

Notwithstanding the fact that it, too, has been the beneficiary of such proclivities, notably over the Foreshore and Seabed Act, there is some merit in the Maori Party's verdict that this "populist" move is one in which "judicial discretion is overruled by political dogma".

Governments and political parties are famously vulnerable to pressure over crime and punishment.

Crime is anathema to all right-minded citizens and the rise of some categories of violent offences against a background of an overall decline in crime requires a firm response.

Moreover, the National Party campaigned on a platform of toughening up on crime.

But crime and punishment, indeed the law as it has evolved in civilised jurisdictions such as we believe ours to be, is patently a complicated business.

It cannot be reduced to the rhetoric of "Three Strikes and the Max" and its hastily compiled riders with serious expectation of there not being discrepancies, inconsistencies and problems with the resultant legislation.

Further, there are questions citizens are entitled to ask of any proposed legislation, including will it achieve what it sets out to do; what will be its cost implications; and will it impact in other ways on the administration of justice in this country?

The new measures, to be introduced in the Sentencing and Parole Reform Bill, will mandate that no prisoner convicted of a serious offence will be eligible for parole if the conviction is a second or third offence.

In addition, once an offender is convicted of a third serious offence, the judge will have to impose the maximum sentence for the crime.

For murder and manslaughter, the maximum is life imprisonment - with "life" meaning just that.

For sexual violation, the maximum sentence is 20 years and for aggravated robbery, kidnapping and attempted murder, it will be 14 years.

Will it make a difference? Criminologists - those people who spend their professional lives studying and researching penal systems and punishment - tend to think not.

They point to the loss of the possibility of parole as a serious disincentive to rehabilitation, with one predicted consequence being that prisons will become more dangerous places, for prison guards and inmates.

Facing a life behind bars anyway, why would a violent offender not be inclined to kill a prison guard if the opportunity arose, or a fellow inmate for that matter? In addition, an armed criminal sitting on "two strikes" and interrupted during the course of a robbery might be considerably more inclined to kill either police or bystanders if being caught will automatically mean the next 14 years behind bars.

Anomalies have already been pointed out in the proposal, and in the fine print there will doubtless be others.

There will be additional costs to the justice and corrections infrastructure resulting from the longer prison sentences (at approximately $100,000 per prisoner per year), and from an inevitable increase in defended criminal hearings as defendants decline to plead guilty where they previously might have.

And the effect of the removal of parole at a second offence will mean that there will eventually be higher numbers of hardened long-serving criminals, with impoverished ability to lead functioning lives on the streets.

Back "inside" they will join an ever-growing class of dangerous prisoners populating an ever-growing number of corrections facilities contributing to the ever-growing tariff required to retain them.

One of the great hoaxes perpetrated in advance of the introduction of this flawed new Bill, and indeed often cited as the reason it is required, is that the country's current sentencing regime, and its judiciary, are of an irredeemably liberal persuasion.

Nothing could be further from the truth.

New Zealand sends more people to prison for longer periods than any other similar developed nation, barring the United States.

But then people who use slogans to promote complex law tend not to be unduly troubled by the facts.

 

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