On ACT’s three strikes policy

Written By: - Date published: 11:42 am, February 18th, 2009 - 13 comments
Categories: act, crime, law and "order" - Tags: ,

ACT’s infamous three-strikes-and-you’re-out policy will get a first airing in the House tomorrow when the Sentencing and Parole Reform Bill is introduced. Violent and sexual offenders will face harsher penalties each time they reoffend – a first “strike” will earn a warning, a second will get a no-parole jail term, and a third a life sentence with a 25-year minimum non-parole period. In short, if you’re a three-striker you’re probably never getting out of jail.

Three-strike laws aren’t new. Australia has them, Canada has had (and repealed) them, and the United States has them. California’s version has attracted special attention because in that state petty theft can be charged as a felony, meaning that recidivist petty thieves can go away for life. ACT has assured us that its law won’t lead to those kind of results because small-time offences won’t count as strikes. Whew. But does that mean that the bill would make good law?

Well, not really. There’s no denying that repeat violent and sexual offenders should be punished and prevented from inflicting further harm. That’s not a new idea. Courts applying existing sentencing laws already take full stock of an offender’s criminal history, the likelihood that they’ll offend again and the risk that they pose to the community. But we’re told that the law as it stands isn’t tough enough. Crime is on the increase, and criminals are getting harder.

So how will the three strikes law help? ACT has focussed its rhetoric on keeping nasty criminals off the streets and preventing further crimes by making repeat offending unpalatable. Sure, if someone’s in prison then they can’t reoffend, but is that a good enough reason to keep people locked away? I think not, because a three strikes law denies offenders the possibiliy of change by exiling them from the community that they were (for better or worse) part of, and it takes away from other members of the community any responsibility for the welfare of their (however anti-social) fellow human beings. It assumes that other punishments don’t work, or that this will work better, even though the evidence of any causal link between three strike laws and diminished crime rates is equivocal. (In fact, recent research on California’s version suggests that violence against the police by apprehended offenders has increased since the law’s enactment.) And, It’ll cost the prison system millions of dollars.

We’re told that three strike laws will deter recidivist criminality, but I wonder, if current sentences don’t deter, why the promise of 25 years would be uniquely fearsome. When prison terms are as long as they are for third-time violent criminals, the actual numbers are kind of academic.

At least at first blush, ACT’s three strikes bill looks like a visceral and simplistic solution to a complex social problem. It looks like reactionary, not responsive, law-making with a shaky evidential foundation. I’ll need a lot of convincing that it’s anything more.

13 comments on “On ACT’s three strikes policy”

  1. George.com 1

    According to Kim Workman on TV3 news last night, Hides plan will cost an extra $3-4 billion per year. Either Rodney is going to have to slash spending in other needy areas or raise taxes. Not sure if the ‘ra ra’ squad have yet figured out it will cost them a packet.

  2. BLiP 2

    More pre-Christian vengeance enshrined in mob-anger inspired legislation appealing to society’s lowest common denominator by mendacious politicians focussed on power rather than progress.


  3. Ben R 3

    I think it’s too inflexible. In some cases offenders could respond to drug/alcohol programmes, or other treatment.

    Having said that, increasing the sentences for repeat violent offending would reduce crime, although more police would be better:

    “The theory linking increased imprisonment to reduced crime works through
    two channels. First, by locking up offenders, they are removed from the streets and
    unable to commit further crimes while incarcerated. This reduction in crime is
    known as the incapacitation effect. The other reason prisons reduce crime is
    deterrence the increased threat of punishment induces forward-looking criminals
    not to commit crimes they otherwise would find attractive. Empirical estimates of
    the impact of incarceration on crime capture both of these effects.
    The evidence linking increased punishment to lower crime rates is very strong.
    Typical estimates of elasticities of crime with respect to expected punishment range
    from 2.10 to 2.40, with estimates of the impact on violent crime generally larger
    than those for property crime (Marvell and Moody, 1994; Spelman, 1994; Levitt,
    1996; Donohue and Siegelman, 1998).


    Annual expenditures on incarceration total roughly $50 billion annually.
    Combining this spending figure with the cost of crime to victims and elasticities
    noted above, expenditures on prisons appear to have benefits that outweigh the
    direct costs of housing prisoners, subject to three important caveats. First, a dollar
    spent on prisons yields an estimated crime reduction that is 20 percent less than a
    dollar spent on police, suggesting that on the margin, substitution toward increased
    police might be the efficient policy.”


  4. BeShakey 4

    Ben R – pity you didn’t consider the shocking possibility of putting in place policies that divert people away from crime. The cost-benefit of these (even taking into accout the long lead-time) is huge. Interesting to see that the reality doesn’t seem to match the theory either – the number locked up in California has skyrocketed, where if their (extremely broad) three strikes policy worked it should have plumetted.

  5. Daveski 5

    Permission to digress …

    Isn’t it ironic that ACT is using open source (Drupal)?

    I’m sure there’s a story somewhere in there!

    I am also an unrivalled fan of Drupal for perhaps it’s some secret right wing agenda!

  6. DeeDub 6

    IMO this won’t get past the select commitee stage before it disappears.

    It’s a sop to ACT.

  7. BeShakey 7

    IMO it’ll get passed with a relatively tight definition of a strike. The Bill is bad. Most Nat MPs know its bad. But they also know that the real effects won’t be seen for 10 to 20 years. So they can pass it as a sop to Act and the Nats hard line supporters, and leave teh mess for someone else to fix.

  8. Ben R 8


    I said in my post that I think 3 strikes is too inflexible & you need to consider alternative sentences as appropriate (drug/alcohol/psychiatric issues may need particular attention).

    In terms of California, there’s this comment here: Also, you need to keep in mind the massive influx of Mexican immigrants, legal & non-legal (California is seen as a sanctuary state) which complicates the picture – for instance many of the old gangs in Compton/South Central have been driven out by new hispanic gangs.

    “The last two decades are best evaluated by looking at the 10 years prior to 1994 and the 10 years after 1994, the year Californians became fed up with crime and passed “Three Strikes and You’re Out” into law.

    During the 10 years prior to 1994, crime increased nearly every year, and California’s crime rate was ranked third-highest in the nation.

    Our inmate population increased more than 400%, and California built 19 new prisons.

    The good news was that in only five years after the passage of “three strikes,” California crime rates dropped in all categories and in record amounts that averaged approximately 40% in every category. California’s crime rate dropped from third highest to 27th. California’s reduction in crime was the fastest and greatest recorded in any state except New York. Our prison population grew only 26% , and we built only two new prisons.

    The great failure in the liberal learning curve was proved beyond question during this 20- year period of time. The liberal position on crime was simple: Tough laws just lock up more people for more time and at greater costs to the state — and they have little or no effect on crime rates.

    After the passage of “three strikes,” California saw dramatic drops in crime and began to understand that less crime meant fewer arrests, prosecutions, victims and fewer people going to prison. Our prison population actually held steady at approximately 160,000 inmates for five years. This was a total shock to the liberal projections that California would need to build 20 new prisons to handle 250,000 new criminals.”


  9. Rex Widerstrom 9


    Thanks, interesting reading. Congratulations on bringing a rational perspective to the other side of the debate, without any of the sabre rattling usually associated with proponents of tougher sentencing.

    The most telling part of the information you’ve presented was that which shows a 20% better effectiveness from a dollar spent on policing vs a dollar spent on incarceration.

    I banged my head till it bled yesterday trying to get this point across on Kiwiblog, even to people I normally consider rational and whose opinions I respect.

    It must invariably be better to spend a dollar on preventing the proliferation of petty crime (and the escalation of petty criminals into more serious offending) than to spend $1.20 locking someone up for longer after they have claimed more victims.

    That’s not a “soft on crims” argument, it’s a “better protecting society” one.

    But the climate seems to be one of vengeful bloodlust. What you’ve brought to the discussion is, therefore, invaluable.

  10. jbc 10


    I’ll also add (and I did on the other thread) that there is a pattern across many areas (crime, employment law, traffic) where repeated offending results in an escalation of the penalty. Why do we do this if it is unreasonable?

    I understand how this three strikes law can produce inconsistent outcomes for the same crime – if you disregard criminal history. But I wonder if this (tougher on recidivists) isn’t just the flip-side of being gentle on first-timers?

  11. Rex Widerstrom 11


    I don’t disagree with you, but with the exception of demerit points adding up to loss of licence (so that it’s theoretically possible to lose one’s licence for a minor offence if one has amassed enough points beforehand) those examples don’t equate to a “three strikes” law in that the escalation is at the discretion of the sentencing judge and not mandatorily imposed by statute.

    Faced with a third time violent offender a judge will inevitably impose a far longer sentence than s/he would were that person appearing for the first time. But if, for instance, the third offence has mitigating factors (self defence or a crime of passion, say) then the judge would discount the sentence accordingly.

    Now one might ask how likely it is that such a case comes before the courts. Highly unlikely of course, but stranger things have happened.

    We already have the option of preventive detention if a judge considers someone presents a significant danger to society.

    Turning the courts into sausage machine where mandatory sentences are imposed regardless of the facts adduced at trial has a raft of negative outcomes – including the possibility that a jury faced with a potential “third striker” with whom they have some sympathy, will return a not guilty verdict because they feel the statutory minimum is too harsh, thus allowing the offender a free pass.

    Opposing “three strikes” law is not supporting lighter sentences, just upholding the role of courts in our system and the separation of powers – a fundmental priciple on which our system is built.

    Incidentally, you’re another person with whom I enjoy discussing these issues. I’m not sure whether the more liberal air (except when it come’s to Lynn’s moderating 😉 ) at The Standard makes otherwise frothing loons moderate their behaviour or whether those who debate here are genuinely more open minded, but I’ll be generous and assume the latter 😀

  12. jbc 12

    Rex, very good points.

    The inflexibility of three strikes is apparent – and I’m generally opposed to inflexible law as I believe that pretty much all law is imperfect. Neither common sense nor justice can be adequately codified.

    However at this end of the [repeat] offending scale my aversion to inflexible law is pretty thin. On top of that it seems that the proposed law is nowhere near as broad as the Californian law to which it has been compared. Nobody is going to get 25 years detention for stealing cookies (unless they carve someone with a meat cleaver in the process).

    Some of the arguments presented against the law are fairly weak. Those direct comparisons with tragic Calif. law cases, and the argument that we will be denying these criminals the chance to change their ways [for the third time]. Hmmm… That’s probably what got me into this discussion. I’m opposed to it on the basis that it removes the opportunity for judges discretion, but wonder if that is not quite as significant as both sides are making it out to be in the narrow cases where it will apply.

    On frothing loons: ok, sprung. Actually I lurk here for the occasional reasoned argument that is contrary to my own, and try to keep an open mind. I like to see more than one side of views – always keen to learn something and see comments which advance the discussion as yours (and others) do.

  13. randal 13

    the thing is if you are mates with garth mcvicar you only get a third of the sentence anyone else would get.

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