Three strikes law is not the answer

Written By: - Date published: 12:13 pm, November 29th, 2022 - 25 comments
Categories: crime, law, law and "order", mark mitchell, national, same old national, uncategorized - Tags:

It is rather weird that the three strikes law is a, ahem, hot topic right now.

It is being held out to be a panacea to the current crime wave the right claim we are suffering from.

A high profile killing of an Auckland dairy worker has sparked considerable anger.

National and Mark Mitchell in particular have chosen to fuel that anger by demanding that the three strikes law be returned.  Even though initial indications are that the person who has been charged was extradited from Australia and may not actually be subject to the law if it was in force.

Mitchell has been reported as follows.  From Morning Report:

He said National wanted to see “proper consequences” for offenders and was “fully focused” on changing the law around discounts.

“The public of New Zealand don’t feel like there is consequences. They don’t feel safe in their houses, they don’t feel like the judicial is working in their favour at all and it’s very rare we here about victims at all these days.”

The law has a somewhat disturbed background.  Its primary proponent was someone who had been convicted of stealing a dead baby’s identity.

As I said previously the legislation was a sports slogan masquerading as a serious penal policy.  Its genesis was the US of A where an informed considered approach to criminal justice is subservient to good old boy tough on crime toting politicians.

It basically has a list of offences where first time up a defendant will be given a warning, second time up an offender serves the imposed sentence without parole and third time up unless it would be manifestly unjust an offender has to serve the maximum sentence for the offence.

It is hard to comprehend how it could have a positive effect on offence levels.  In fact the National Government was advised that the law change may result in more homicides.

It is not difficult to understand how this could work.  The ones at risk of being subject to three strikes tend to be poorly educated and either very drunk or out of their head on something or they have the type of personality that means they respond very poorly to certain circumstances or they suffer from a mental condition. They do not have law degrees or coldly measure the consequences of their behaviour if they act in a certain way.

They are almost inevitably impulsive. They will not perform a deep analysis of the likely consequences, instead they will think along the following lines, “S*&t I’m going down but if I get away I might not get caught”. It is then quite conceivable that they will kill someone to get away.

The law had come up with some batshit crazy results like the case where a prisoner was sentenced to seven years imprisonment for pinching a female prison guard’s bum.  Another person who suffered from long-standing and serious mental illness, who had been admitted at least 13 times to mental health facilities, and who suffered from schizophrenia and substance (drug and alcohol) abuse received the same sentence for an unwanted kiss on the cheek of a stranger.

This second case led the Supreme Court to decide that the sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach the Bill of Rights. They also agreed that this right not to be subject to cruel or disproportionately severe punishment is not subject to the reasonable limits protection under the Act.

So suggestions of a return of the law is both an affront to the rule of law which National is meant to support and may actually increase the homicide rate.  And it will not be a panacea.

You need long term reform to achieve this.  Address poverty, improve housing standards, care for people’s health and give everyone a good education.

But these tough on crime slogans that by the looks of it do not actually apply to the offence in question do all of us a disservice.

25 comments on “Three strikes law is not the answer ”

  1. Barfly 1

    "extradited from Australia"

    deported?

    • Obtrectator 1.1

      For God's sake, is this silly error going to go on and on being committed? If you extradite someone, it's because you DO want them in your country – to face justice. We certainly DIDN'T want that Aussie reject here.

  2. Lioness 2

    "a prisoner was sentenced to seven years imprisonment for pinching a female prison guard’s bum."

    "received the same sentence for an unwanted kiss on the cheek of a stranger"

    Always great to see the left minimize physical and sexual assault against woman. Perhaps this is why so many of us no longer feel safe in Aoteroa NZ.

    • mickysavage 2.1

      This is not minimising the effects of physical and sexual assault. This is wondering why these instances should attract the exact same way as the most extreme examples of the offending.

      • Lioness 2.1.1

        You are minimizing it.

        The law is called the "3 Strike Law". So for either of these offenders to have been potentially facing the the maximum potential consequence of this law they must have committed similar crimes or severe crimes at least twice previously and potentially even more times if they did so before the law was first passed.

        You use the terms "kiss on the check" and "pinch on the bum" instead of what each of those acts were, "a sexual act committed against an unwilling woman".

        You try to defend it by saying "it was just a kiss", "just a pinch". Have you considered how those effected the victims? No you haven't you have simply taken the view that the crimes didnt reall matter and could have been worse so the poor criminal shouldn't have been punished to much.

        Your attitude is why Labour is known as crim-hugging and soft on crime.

        • mickysavage 2.1.1.1

          That is quite the pivot from complaining about lack of empathy for victims to saying Labour is crim hugging and soft on crime. Criminal activity comes in all degrees of severity. To say that all offending is equally bad no matter what the circumstances is not the actions of a well run criminal justice system. Heard about proportionality?

        • DS 2.1.1.2

          There are people in prison for rape who serve less than seven years in prison.

          Do you think a bottom pinch is worse than rape? Because that's what Three Strikes says.

    • DS 2.2

      It's called proportionality. Or in this case, disproportionality.

      Frankly, seven years for a kiss on a cheek is a greater affront to the conscience than the initial kiss on the cheek.

  3. alwyn 3

    On the summary piece you get about this story you finish by saying

    "And despite there being evidence that it would actually work."

    Are you seriously suggesting that we should not do something because it would work?

    [Clearly there is a missing “no”. Have now amended – MS]

  4. Mike the Lefty 4

    The best deterrent for crime is NOT harsher sentences, it is having a state-owned, professional, well-funded police force staffed by the right people.

    Before the Bow Street Runners in the late 18th century, the system was one of hue and cry and bounty hunters, plus harsh sentences including whipping, branding and hanging.

    Harsh sentences did not reduce crime then and they won't now.

    The best thing the Labour government could do would be to separate traffic and police as used to happen. More police stations that are actually open and not shut after office hours. Police on the beat, in the community, like it used to be. Nowadays the police force is reduced to little more than a swat squad for emergencies and traffic accidents.

    There will be less crime when potential offenders fear that they WILL be caught. At the moment they reckon the odds are in their favour, and harsher sentences are just a joke to them. No offender can be sentenced if they not first caught, and if our police force is not capable of doing the job then they won't be caught.

    It will take a shitload of money, but building more prisons will take a shitload of money too.

  5. DS 5

    Three Strikes is nonsensical, evil, and stupid. It does nothing to actually deter offenders – who now have a perverse incentive to perform the worst possible form of the crime in question, since the system is now incapable of distinguishing between levels of severity.

    (Hint: that bloke who got seven years for a bottom pinch? He'd have received exactly the same sentence if he'd performed the worst possible act of indecent assault upon the woman in question).

    The kicker is that it costs the state $100,000 a year to keep someone in prison. That's the state wasting $700,000 for a bottom pinch. Talk about wasteful spending…

    That said, the Supreme Court has been been getting rather aggressive in its political interference recently. I am not so worried about this example, since it actually pertains to the judiciary's bread and butter, but honestly: even when politicians are morons, the judges need to pull their heads in. Leave the politicians to the voters.

  6. tsmithfield 6

    Mickey,

    The peverse outcomes you described were counteracted by the fact that the judge could avoid the 3 Strikes sentencing requirement should the sentence be manifestly unjust.

    Whether the 3 Strikes law "works" depends on what is meant by "works". So far as the public is concerned, they probably think it "works" if recidivist offenders are kept off the streets for longer.

    Personally, I think the whole prison set up is counter-productive, whatever system is used.

    Firstly, I think prison should be a place where people come out better rather than worse. Secondly, I think there needs to be much more support in the community for prisoners when they return to the community.

    In order to come out better than they went in, I think prison should be seen as an intervention that enables people to have the factors in their lives that cause their behaviour to be rectified. That could mean treatment for drug addiction, fixing educatoinal defecits, teaching employable skills, anger management counselling etc.

    So far as sentence discounts for good behaviour are concerned while in prison, I would link that to making progress with respect to the factors mentioned above. So that early release is tied to reduced risk of offending.

    Then, in the community, there should be mentor programs, jobs they can immediately go to, accomodation etc.

    • lprent 6.1

      Once they get prisons to the point that people actually do come out better and are supported when out so they don't reoffend – then we can look at sentencing.

      Perhaps we could raise taxes to increase the sevices you describe to the point that they can work. I would suggest about a 10 fold increase to scanandavian levels as a starter. Because in NZ most of those services are pretty non-existant, ineffectual, or too over-worked to work.

      Probably why our reoffending rate is so damn high compared to states that don't follow Nationals persistent penny-pinching on support services.

      In the meantime National looks to me like they just like warehousing prisioners with dipshit 3 strikes sentencing. I guess that they can see a profit in it somewhere.

      I can’t. It is an uneconomic way to use my taxes to pay dividends to prison investors.

      I would prefer spending money on more police

      • tsmithfield 6.1.1

        In the meantime National looks to me like they just like warehousing prisioners with dipshit 3 strikes sentencing. I guess that they can see a profit in it somewhere.

        Iprent, that criticism is probably fair. On the other hand Labour seems really good at throwing money at problems without much in the way tangible results.

        What is probably needed in NZ is a grand coalition that lasts about 20 years so that politicians are able to implement effective policy that actually deals with the root causes of problems. At the moment politicians from both sides of the fence seem to come up with headline grabbing policies to placate their voters that don't really work in the long term.

        Maybe the adversarial style of politics will end in the future to allow such a possibility. I am not holding out too much hope though.

        • lprent 6.1.1.1

          On the other hand Labour seems really good at throwing money at problems without much in the way tangible results.

          The problem is that they don't. You have to really throw enough money and resources at any end of it to make it work and then sustain it for decades.

          It takes decades to get those types of systems working. Typically National spend all their time in opposition complaining about even trying to do it, then cut all of the programs as soon as they hit the government benches.

          Politically there is absolutely no political capital working on it because of the way that lazy right voters push it. They're not interested in fixing a social ill and making sure that it reduces. They just want a short-term fix to a long-term issue.

          NZ has about 10-11 thousand sworn police and less than 4000 odd support staff for a population that is close to 5 million people. In 1990 we had just over 5000 sworn officers for a population of 3.3 million. They are a key part of our emergency response systems.

          Despite which they still get overwhelmed when we have emergencies like the pandemic or Australia offloading their societal failures here (the 501s). We need to keep raising numbers to the point that they actually have time to deal with the low conviction rates.

          When you look at other countries our number of police per head of population is really low. And that is the case for all emergency services from everything from fire, civil defence, and our social support agencies.

          We effectively don't support dealing with people leaving prison or being 501 deported from Aussie.

          For instance I generally advise people who have to use WINS that they will have to fight to get their entitlements because the accumulated punitive idiocies that the National / Act / NZF and even Labour have piled on a basic economic function of society (employment and income transitions). They're there to handle recessions, economic structural changes, people having unexpected upsets in their life like the unexpected birth of a child, etc. They are only really funded for 'normal' operations with the kinds of government policies that they have to contend with.

          WINS seems to have an institutional preference to never tell anyone what they could do, instead always effectively pushing them towards getting evicted or not having food. Because that is what a succession of governments (mostly right ones) have told them to do. WINS attempts at job-finding, reskilling, and training are simply ridiculous.

          So you can imagine (for instance) what it is like for a 501 landing in NZ with a few bucks, not knowing anything about the system, being dumped on relatives that they don't know, and being unable to get enough money to live on. Basically if you read the 501 page from corrections you'll get the idea. Essentially shoved off the plane in a country that most have never lived in and given a few days accommodation and money. WINS will spend a lot of time getting them learning how to write a really basic CV, but not enough to find them money for their food and rent.

          This is also pretty much the same for people coming out of prison. The last thing that they want to do is to deal with prison on the outside with no real support – which outside of family (if they have any) is pretty much what they get.

          Bill English was pretty much the only politician from the right in NZ that I have ever seen looking at these kinds of issues. But he was budget constrained because conservative voters are more concerned about reducing taxes than reducing the costs of offending and re-offending to society. Instead that they just pile on useless expensive punitive laws and regulations on places like WINS that cause homelessness, offending and re-offending. Seldom spending anything at all on actual cost-saving prevention – like dealing fairly with people.

          Luxon is a just such a classic example of a right simple-minded political moron. Youth military camps FFS. Pretty clear that the lazy dimwit was never in the military and that he has absolutely no sense of either duty or perspective.

          Soldiers and the armed forces aren't there to act as fucking jailors. They train to produce soldiers capable of handling themselves in situations from combat through to extended civil emergencies. They are highly and expensively skilled at training the willing for the unexpected. I spent 7 odd years building training systems to allow soldiers (mostly offshore) better trained. The type of systems that our SAS use at their MOUT for instance, or the major exercises that the aussies hold for various nations in their training grounds.

          To even think about all that military training being wasted as jailers and training the sentenced is a expensive travesty. Plus I note that Luxon – the lazy arsehole hasn't managed to say more than a few platitudes about helping with kids released from that kind of program to reintegrate back into civilian society. I guess that as the worst type of lazy god-botherer, he just expects that to miraculously happen.

          Maybe the adversarial style of politics will end in the future to allow such a possibility. I am not holding out too much hope though.

          Until the right voters stop being simple-minded idiots concentrating on blaming others rather than caring about their society enough to concentrate on how to make it work, I can't see it changing.

          You don't have to look too far to see the political problems. I just read about the Act policy on RMA and transport. that pretty much came down to..

          If you have money and resources, ACT consider that you have a perfect right to stomp over all others by winning everything in court. Be an aggressive arsehole to your neighbours and push them into having defend themselves from your assertions of rights to be an complete arsehole. They'll run out of cash before you do – that is why arrogant arseholes should fund ACT.

          You'll note that there is absolutely no mention on how someone with few resources can defend themselves against their neighbours arbitrary actions in Act neighbourly. Yet they are expected to do so.

          It also doesn't say how you could find the kinds of scientific data collecting required to defend it for things like water pollution. I guess that again, being able to pay for tame 'experts' means that you win.

          I can't see any common ground with this kind of individualistic fuckwit with no sense of duty to our society.

          This is from the party that brought in the incredibly stupid and ineffective 3 strikes legislation as a fashion import from the prison industry in the US.

          • tsmithfield 6.1.1.1.1

            Hi Iprent,

            I would actually be happy to pay more taxes for what I see as critical areas for our society.

            For instance, internationally competitive wages for medical staff so we don't waste money training them up only for them to be attracted overseas by higher wages.

            Competitive salaries for teachers that attract the most gifted candidates to that role, rather than them being attracted to accountancy or something that pays better.

            Community interventions to address the endless cycle of crime, drug addiction, and welfare dependency in many of our communities.

            Once we have effectively dealt with those critical areas, then we can start to fund the nice-to-haves.

            But I am not happy to be paying more taxes when I see a lot of it being poured down the toilet on vanity projects such as the TVNZ RNZ merger, or light rail projects that are highly dubious in their completed cost and their benefit to the community. I would much rather the money spent on that be put into critical areas.

            I think all government spending needs to be put under that microscope so the fluffy stuff is pruned out, and the funds freed up put into areas that really make a difference to the long term well being of our community.

            I agree that the right can tend towards dog-wistle policies. But I also contend that the left is often ideologically driven towards spending that meets esoteric objectives rather than actually making a difference.

            That is one reason I think a grand coalition is needed. Just look at what will happen when the government likely changes next time. A lot of the stuff Labour has invested in believing it takes a long time to make a difference will likely be repealed and it will never get that chance. Whereas a long-term stable government would allow the time for positive changes to happen.

            • lprent 6.1.1.1.1.1

              If you are prepared to avoid dealing with a current problem and want to wait for an indeterminate time for one of those to have an effect on the same problem in 20-40 years – then be my guest.

              It is a worthy but in my view , a completely hypocritical and sanctimonious sentiment, albeit a mostly completely useless one based on evidence to date.

              Generally the bulk of everything you have listed goes to benefit the relatively affluent and elderly and has minimal long-term effects on the probability of crime or on re-offending after a session in prisons. That is because every time that these are tried, the benefits are diverted to affluent areas.

              The bulk of the value doesn't go to the schools that the poor go to. Not to the communities with high crime populations. Not to the areas with high unemployment. Not to health prevention programmes – but too providing health care for the voters over child-bearing age. The value invariably goes to the relatively well off communities with jobs, income, and relatively low creators or crime.

              All of these have been tried over many decades. None have been shown to have that much effect on the outcomes of kids becoming anti-social or criminal, or with dealing with the downstream effects of people being processed through our justice system. That is because of the benefit bias that shows for each of those programmes.

              Consequently we wind up shelling out money for those programmes while also continually paying the costs of crime through insurance premiums and the costs of justice and prisons.

              As MS said in the post, the only real correlations about actual crime reduction here and overseas have been with the changes in age demography (or having readily available relatively safe jobs).

              You'll note that I'm not talking about convictions or sentences. That only really seems to have a correlation with vigilante voters. The 3 strikes debacle being and obvious example. But also generally increases in sentences and mandatory minimum sentences. Those seem to have a strong correlation with increasing violent criminal acts.

              The costs of fixing at the bottom of the cliff are still there.

              The costs of reinforcing anti-social or criminal behaviour by putting people into criminal educational institutions like prisons are well known and still there. Their effect on the actual rates of re-offending has always been minimal, and in most cases on the young increases the probability of re-offence.

              Yet the only solution that fools seem to have is to either point to social programmes that don't have much effect on the outcomes. Or who want to make it worse by locking people up for longer to encourage them to become more likely to re-offend or to become more violent to avoid being caught.

              Idiotic

              What those same fools then do is to get upset about what is known to work. Keeping most people who commit crimes out of prison, providing real training and education inside prison, providing real support after sentencing or terms in prison, and generally making it easier for people to access benefits that prevent them wanting to go back to offending. All of which is way less costly and far more effective.

              The idea would be to reduce re-offending. After all if you can do that then you have massively reduced the life-time costs of habitual re-offending on society by offenders in their late teens, 20s and 30s – the demographics of offending show that most criminal offenders start early typically as passion or anger issue and don't really stop until middle age.

              After you do that – you can start to look at how to reduce youthful offending in the first place confident that the backstop for those you miss will keep the costs to society down.

  7. Thinker 7

    Oh yes, remember David Garrett, proponent of the 3 strikes law…

    Strike 1 steal babies' identity

    Strike 2 obtain fraudulent passports

    Strike 3 assault in Tonga.

    But the sad thing is I'd give my watch to David Garrett to mind any day rather than the Dancing Perkbuster…

  8. observer 8

    It is a clear example of the irrelevance of so many "solutions", and therefore, the lack of sincerity of the politicians who propose them.

    Deterrence works when offenders think. "I won't do that, because I have weighed up the risk and reward and it is not worth it".

    Anybody who commits aggravated robbery (max penalty: 14 years) for cigarettes, booze or petty cash is not thinking much at all. If you want to make a lot of money, there are easier and safer crimes (no, I won't tell you which ones!).

    Here's what happens if you commit aggravated robbery.

    https://figure.nz/chart/3ZERJLSWFUA7wKPN-DW8miEWIyrWKT0qk

  9. Tony Veitch 9

    In a nutshell, the trouble with our society is we’ve become too soft over-all. We’ve lost that toughness of our pioneers who burned the forests, broke in the land and displaced the natives.

    We need to get back to a more essential way of dealing with offenders – something along the lines of the Old Testament (Luxon’s go-to book of reference) or the Roman Empire.

    Make offenders part of our entertainment, by pitting them against each other in an auditorium like Eden Park – an eye for an eye, a tooth for a tooth, a fight to the death.

    This would solve two immediate problems – it would act as a deterrence to those thinking of offending, and permanently remove most of those who had offended, thereby saving the poor hard-working taxpayer ship-loads of money.

    We need much more self-reliance and resilience and more consequences for wrong-doing. Poverty and dysfunctional Ruth-endowed families are no excuse. Everyone should aim to be a successful CEO and own seven houses, otherwise, what use is society if not to pander to our greed?

    Toughen up NZers and become successful, like our role-models to our right!

    /s

    • RedLogix 9.1

      The role of the state is to administer punishment and justice, the role of the individual to be compassionate and forgiving.

      Not the other way around.

  10. UncookedSelachimorpha 10

    Not to excuse people currently committing terrible crimes, but the more effective longterm solution for crime is better opportunity, care and support right from birth (and before birth). A lot of problems are established long before people start school. Plus we need actual support for adults and young people with problems (e.g. counselling, housing, addiction treatment etc)

    Strangely, the people and parties that shout the loudest about getting 'tough on crime', are usually the same ones with policies that entrench poverty, inequality and disadvantage i.e. tax and service cuts, 'flexible' workplaces, 'user pays' (=poor can't use) etc.

  11. Adrian 11

    We hardly hear stories of any 501s who have been able to live here without being the first item on the 6o'clock news. A nieghbour has recently had a house built by an Auckland builder who employed several 501s, very hard workers, interesting lunch companions, didn"t try to sell me any drugs or sawn-off shotguns. One was sent back because after a speeding ticket they found a many years old punch-up charge and that was enough to be separated from an 18 month child and trying to start again with no family here. I think the builder is brave, compassionit and to be congratulated.

  12. georgecom 12

    National has just reached it's 3 strikes for tired old law and order policies, slogans and rhetoric

    Labour soft on crime, boot camps, 3 strikes law

    no new thinking, no new ideas. after 5 years in opposition nothing tangible or new to offer

    If they had anything new we would be seeing ideas about stemming the flow of 501 returnees. only party doing anything in that space is Labour

  13. Paul Campbell 13

    "3 strikes and you're out" is so culturally wrong, if we must have this nonsense surely it should be "6 balls and you're over"?

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