Written By: - Date published: 7:38 pm, February 18th, 2009 - 43 comments
Categories: human rights, law and "order", national/act government -
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The Attorney-General, National’s Chris Finalyson, has declared that the ’3 strikes and you’re out’ Bill that National/ACT (and Finlayson himself) are about to vote for violates human rights.
From Finlayson’s report:
What does that mean?
Finlayson is saying that giving a life sentence to a person who is on their third strike for an offence that would see another person, who is not on their third strike, get as little as five years is unjust. See, a just legal system that upholds the rule of law should deliver, amongst other things, equality and fairness. For example, offenders should get the same punishment for the same crime and the punishment should match the crime. Three strikes fails both these requirements.
As Finlayson puts it “[the three strikes law] may result in disparities [in sentence] between offenders that are not rationally based”. The same crime could result in offenders getting different sentences for no good reason. That is arbitrary and any good legal system must avoid arbitariness.
Finlayson goes on to say “[three strikes] may also result in in gross disproportionally in sentencing”. That is, the punishment may be entirely too severe for the seriousness of the crime in the context of the punishment for other crimes and the normal punishment for the crime committed. We have seen this time and again in US states that have three strikes. There defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes (Leandro Andrade, received double sentence of 25 year-to-life for 2 counts of shoplifting), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years), and Kevin Weber was sentenced to 26 years to life for the crime of stealing four chocolate chip cookies (previous strikes of burglary and assault with a deadly weapon)*.
No-one is attempting to excuse the criminal, and often violent, actions of these people. But we mustn’t violate the founding tenets of our legal system to punish them a bit more. If a person is a habitual criminal and an ongoing danger to the community, then, as Finlayson’s report notes, preventative detention is available to stop them offending. We have the tools we need. What we don’t need is the blind sledge-hammer of a three strikes law.
This is the second time in a week that Finlayson has been forced to announce that one of his government’s laws will violate the Bill of Rights. National/ACT are smashing our human rights and the bases our justice system needlessly, so they can look tough on crime. It’s not worth it.
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Scoopit!
What the three strike bill does is create status crimes. It makes the fact that a person has a particular status that of being a repeat offender not only an aggravating factor in sentencing, but a sufficient condition for a new category of offence. Murder at strike three, for example, becomes “strike-three-murder.’ So, two people could be charged ostensibly with the same offence, but really face conviction for substantially different crimes. That risks disproportionate sentence outcomes and it’s a dubious way of indirectly creating a new class of offence and a new class of offender.
It might be discrimination, it might be a species of double-jeopardy, it might be unjustified in a “free and democratic society’, which is the standard required for a statute to be compliant with the Bill of Rights Act.
In any case, it ignores that previous convictions are already an aggravating factor in sentencing, and that realistically people with track records of violent offending aren’t going to get off lightly.
Mike:
“In my book if you remove, or try to remove or ignore , others rights, then you loose you own claim to any ‘rights’.”
Righto….. NACTM should go into the slammer for removing the right to appeal unfair dismissal within 90 days of employment then?
Was that not removing others’ rights?
@work: Seconded.
Mike: The way that a society treats its criminals (or its kids, or elderly) reflects its health. If the majority have a punitive approach, “Stone her! Stone her!” “Hang him! Hang him!” then that society is sick. I don’t want to be part of that. The majority of inmates are sad people who have made dumb mistakes and there but for the grace of god will go you.
Pixie. Yeah, I was thinking about the double jeopardy angle. You are effectively being jailed again for a crime you have already been punished for. That said, as you mention, previous offending is already a factor in sentencing and we don’t see that as a (serious) breach of double jeopardy. There must be a line there and I think 3 strikes goes past it.
While I’m all for more effective sentences, is nobody interested in the fact that re-offending chance actually goes up the longer we jail people? That would seem to me to be the very opposite of an effective sentence, and would effectively make this bill responsible for increased violent crime twenty years or so in the future. Nice present for your kids and grandkids.
Unless we’re just going to send everyone who commits a violent crime to jail for life, (and as much as some of you would like that, it’s fundamentally inconsistent with the often accompanying desires of wanting tax cuts and a smaller government, not to mention the principle of proportionality which underlies our justice system) we’re going to need to do something about the fact that our prisons are encouraging people to re-offend.
SBlount:
Good grief. If sentences were “based on what is appropriate for an innocent person” then there would be no sentences.
I said when I hear the word prison I think of those wrongfully convicted, implying that the harsher the environment within the prison, the greater the injustice experienced by those people, and those on remand who are later found to be innocent.
To get from that that I believe everyone should be sentenced as though they were innocent?! I really need to revise the way I’m expressing things here. Or something.
The bill will not violate human rights. I think appropriate force for punishment is being confused with defensive force. Given this there is no conflict with the bill and the doctrine of proportionality.
Three Strikes: Proportion and Protection