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.

The import of this is that the justice system must enjoy the confidence of all of the citizenry: this particular piece of legislation threatens to undermine it.

Parleying the advice of Crown Law to Parliament, the Attorney-general, Chris Finlayson, himself pointed to such deficiencies as the new law contravening the Bill of Rights Act, leading to disparities between offenders that are not rationally based and gross disproportionality at sentencing.

The law's supporters have responded that the "manifestly unjust" clause answers such concerns, but there are fears that judges and higher courts will find this difficult, if not impossible, to define - although it is inevitable that a great deal of court time and public expense will be spent in attempting to do so.

It might be possible to ignore this if the new law reduced violent crime, made the streets safer, and the justice system more robust and efficient. But these ends are far from assured. Evidence from international studies suggests that, for instance, the three strikes scenario might lead to an increase in serious crimes such as murder.

A repeat offender caught in the act of a qualifying third offence, and with only a witness or a police officer standing between him and the next 20 years in prison, might consider he has nothing left to lose precisely by committing murder.

And faced with a court process that must sentence to a certain level, legal experts say large numbers of criminals will not plead guilty, rather clog up the courts contesting their cases, adding to the legal aid bill in the process.

Unintentionally, the law could move a significant function of the courts into the hands of the police: their decision as to what charges to lay against individuals will - by virtue of placing defendants in or out of the offences strike zones - carry much more severe consequences than previously and, again, will surely increase the impetus for not guilty pleas; or legal skirmishing over the validity of the charges.

While the effects of the law will not be seen for some years, it will inevitably raise the already rocketing corrections tariff: more people will stay in prison for longer. It costs approximately $100,000 a year to keep an offender in prison. That is dead money, funds nonetheless society should be prepared to invest if it had anything to show for it at the end of the sentence.

But it does not, and it will not. The three strikes legislation will do nothing at all to address the causes of crime, and fundamentally, philosophically, sets itself against the rehabilitative thrust of hope and redemption.

This is poor law, based on flawed precepts, delivered primarily for political ends.


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