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Tories bulldoze human rights, your rights

Written By: - Date published: 7:38 pm, February 18th, 2009 - 43 comments
Categories: human rights, law and "order", national/act government - Tags:

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:

attonerygeneral1

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.

43 comments on “Tories bulldoze human rights, your rights ”

  1. marco 1

    Is that kinda like Labour bulldozing freedom of speech with the EFA?

  2. Doug 2

    And like Labour ramming through legislation to cover Corrupt Practise for the theft of Taxpayer funds.

    IrishBill: as I have pointed out to marco below, aside from your abjectly wrong legal premise do you really think that minor election funding issues have anything like the weight of people being denied natural justice in a manner that costs them decades of their lives?

  3. IrishBill 3

    Marco, Putting aside your fundamentally stupid “Labour did it first” argument, no. The EFA was about stopping wealthy lobby groups from spending more than $120,000 on direct election campaigning whereas this law is about taking people’s lives off them simply because they fell into a blunt and absurd legal arithmetic.

    However if you think the right for a tiny proportion of people to spend as much as they want in an election year is as important as the right to be sentenced in a manner that can make allowance for the actual nature and circumstances of a crime then that’s your (rather perverse and inhumane) prerogative.

  4. burt 4

    But the polls tell us the people are loving it.

    IrishBill: removed: nobody likes a linkwhore, burt.

  5. vto 5

    How about, for those that support the three strikes thingy, get around this issue by making it a matter of crime, not sentencing. Namely, make it a serious crime to commit three serious crimes, and the punishment for that particular crime of three crimes a mandatory 25 year term.

    Make it an amendment to the Crimes Act, not a Sentencing and Parole etc Act.

    Surely that would circumvent this problem …

  6. vto 6

    Irishbill, re Burts link, you guys are funny the way you are so selective. No doubt it would have been left up if it had shown Labour on a record 64% rather than National on a record 64% and Labour at 27%.

    Oh well, its your house.

    IrishBill: yep, it is my house.

    [lprent: besides it was a stupid link whore – worthy of someone like the unlamented Rob (not r0b)]

  7. mike 7

    This ammendment only applies to multiple serious violent offenders so the “your rights” heading is spin.

    Good on you going into bat for violent crims though SP – it will see the left vote slip further…. if that’s possible

  8. coge 8

    Since when was violent crime a right Steve? The population has tired of excuses.

  9. Herbert. 9

    Just a minor correction.Tories can’t drive bulldozers.

  10. Rex Widerstrom 10

    I have to say I spent most of yesterday trying to talk some sense to people on this over at Kiwiblog and was disappointed to note the blind faith belief that itll magically, somehow, all work brilliantly even from people who opinions I usually respect.

    It seems the media have done a truly excellent job of making even rational people believe that packs of “violent crims” are roaming our streets with machetes like something out of a George Romero zombie movie.

    I must be incredibly fortunate, then. I used to short cut back from Courtenay Place to my Terrace office via Vivian and Upper Cuba Streets almost every Friday night for six years, and even worked a graveyard shift on Karangahape Road for a couple of years (no, not that kind of work…) and in all that time there was only once I felt unsafe, and that was a confrontation with a patched gang. And it wasn’t something random, it was over a dispute with my boss.

    Meanwhile at one of the prisons I visit, approximately 200 of these inhuman beasts have happily given a total of $905.50 from their “grats” – which they earn doing tiring physical work like gardening or laundry, it’s not just handed to them each week – to the Victorian bushfire appeal. (the average crim earns about $30 from which they must buy toiletries, shampoo, tobacco, cordial, and any treats such as chocolate or cheese and crackers).

    That was facilitated by a prison officer, who also organised that the textile manufacturing program add “joey pouches” to its output and that these, together with the dog and cat blankets usually made and sold for a profit, also be donated to Victorian vets and animal hospitals.

    Of course this isn’t something corrections want to publicise (it suits them to be perceived as caging animals, not helping them) so the CO emailed “Kochie and Mel” of Seven’s “Sunrise”, who have been having an orgy of faux empathy from the disaster site all week. What a surprise – hers must have been the only email not read out.

    Sorry this has gone a bit off topic, I guess I’m just venting. I didn’t really grasp the meaning of “soul destroying” till I started dealing with these issues… and that’s from someone who’s also helped people through the morass of the Family Court.

  11. Herbert. 11

    “morass of the Family Court”

    For a male in the Family Court a judge rules three strikes after three words are submitted as defence by a forced respondent. Go directly to jail and do not pass go.Roll that dice judge.

    [lprent: d4j – why don’t you just stick to a single pseudonym. You are instantly recognizable ]

  12. Daveski 12

    Busting spin – myth #2 🙂

    This is getting easier by the minute.

    I think there is a worthy principle but frankly unless being an anal-retentive type with a focus on semantics is a criminal offence (BLIP and Tane may think so), then I doubt my rights are being reduced.

    It does get harder to take some of you seriously – SP inability to admit he was wrong on the Key will cut your wages is effectively myth #3.

    As for the EFA, even the Labour party voted to get rid of the turkey but we can’t admit our mistakes here.

    Yes SP, it’s a dumb act, but the hyperbole is completely over the top and almost desperate. You’re better than this

  13. Doug 13

    WHOOPEE

  14. Rex Widerstrom 14

    Daveski: SP being wrong about one thing (and he was, IMHO, on the EFA) does not preclude him being right about another thing. And on 3 strikes he’s right (as is Finlayson, I might add).

    It’s a bit like burt gleefully pointing out that “the people are loving it” while overlooking the fact that these same “people” elected the Clark government three times.

    Fed a diet of pap by a superficial media “the people” will simply regurgitate the nonsense. Which poses a bit of a problem for someone who, like me, believes in referenda. But that’s what makes democracy a challenge, I guess.

  15. I always enjoy Law and Order debates. The opinions expressed are more based on prejudice than fact than any other debate I can think of.

    The reality over the last few years is that:

    1. Average jail sentences for serious offending has increased dramatically,
    2. Bail laws have tightened up.
    3. The prison muster has increased from 7,000 to 9,000. Many more people are in jail. See 1 and 2.
    4. Criminal offending rates under Labour decreased.

    My experience is that when you say any of the above you invoke a loud vitriolic response from wingnuts and all sorts of counterfacts that by definition are not based in reality.

    What is really needed is an acknowledgment that the NZ Bill of Rights sets out minimum standards that should be applied to all of our citizens. We also need a business case analysis to work out if we should jail citizens or try to rehabilitate them. Rehabilitation is far cheaper and far more successful. I will hold my breath and hope …

    Meanwhile Finlayson ought to be praised for fronting reports that suggest that the proposed legislation is in breach of the BOR. I can only hope that Parliament takes this into account.

  16. Daveski 16

    Rex – fair comment, and I do acknowledge in passing (twice in fact) that there is a valid point.

    For all my failings as a righty, you’d have to be mad to see the inconsistency of the proposed presentation.

    I’m just reacting to the hyperbole – “smashing our human rights and the bases our justice system”. I compare that with the response to the chilling effect on democracy comment and hence I get a little jumpy.

    BTW I enjoy your posts and the sensible contribution you make here and elsewhere. You’re not semantic either and even i can’t stand semantic pricks like me!!

    Cheers

  17. jbc 17

    If you apply the AG’s reasoning to traffic offences then you find that demerit points have the same failing: inconsistency. Driving at 110km/h, one person might get off with 10 demerits, another will lose their license. Where’s the fairness and consistency in that? (actually seems fair to me – the license loser has repeatedly broken the law)

    To agree with the AG’s reasoning then you must believe that a person convicted of their third rape requires no more deterrent than a first time offender.

    Doesn’t the court already give lighter sentences (or none at all) for first-time offenders in less serious crimes? Why wouldn’t the same reasoning apply here?

    All of these things deliver inconsistencies. I’m curious to hear how some are presumably OK, and others not.

  18. Redbaiter 18

    “But we mustn’t violate the founding tenants 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.”

    Funny then that the uncivilized oaf Clayton Cosgrove was able to introduce his “boy racer” laws, which violate not only the Bill of Rights but also traditional legal principles such as innocent until proven guilty, with little complaint from the left.

  19. Billy 19

    Mickysavage said:

    1. Average jail sentences for serious offending has increased dramatically,
    2. Bail laws have tightened up.
    3. The prison muster has increased from 7,000 to 9,000. Many more people are in jail. See 1 and 2.
    4. Criminal offending rates under Labour decreased.

    Ya reckon items 1,2 and 3 had an impact on 4? If so, I guess you’ll be among those calling for more of the same.

  20. Billy 20

    IrishBill said: The EFA was about stopping wealthy lobby groups from spending more than $120,000 on direct election campaigning …

    You still defending this thing IB? What with the actual Labour Party abandoning it, you know that makes you kinda on your own.

  21. lprent 21

    Nope – I do as well. I don’t think that the NZLP hasn’t ‘abandoned’ the principles. They will continue to push for the same things.

    It is going to be interesting to see exactly what the Nats mean when they talk about cross-party agreement? Something like we’ll ram our ideas through under urgency based on their current track record (with the deafening silence and implicit compliance of the anti-EFA crew would be my suspicion).

    So what do you think should be the restriction on third parties. That they are allowed to spend more than political parties? That they can pay for votes as people enter or exit the booths?

  22. jbc: “To agree with the AG’s reasoning then you must believe that a person convicted of their third rape requires no more deterrent than a first time offender.”

    Steve Pierson:”preventative detention is available ”

    Redbaiter:
    “Funny then that the uncivilized oaf Clayton Cosgrove was able to introduce his “boy racer’ laws, which violate not only the Bill of Rights but also traditional legal principles such as innocent until proven guilty, with little complaint from the left.”

    I certainly complained. Though your right, it is hard finding people to go into bat for boy racers.

    What do you think the solution might be? I sometimes wonder if the Bill of Rights should be elevated to written constitutional status, and have the Supreme Court able to strike down laws, though I fear that may lead to all sorts of unintended consequences.

  23. Edit to end of above: “I certainly complained. Though your right, it is hard finding people to go into bat for boy racers.” And now we will shortly have round 2 (unless you count the exhuast laws aswell) to deal with.

  24. Rex Widerstrom 24

    mickeysavage suggests:

    We also need a business case analysis to work out if we should jail citizens or try to rehabilitate them. Rehabilitation is far cheaper and far more successful.

    Damn right we do. We need desperately to get this debate out of the emotive and into the practical.

    I’ll admit that when someone says “prison” my first thought is of the estimated 40 or so people in NZ (extrapolated from international statistics) who are wrongfully convicted. Then for those on remand, around half of whom (again, based on international averages) will eventually either be found not guilty or have the charges dropped before trial. Then there’s the group who are guilty but whose sentences, for one reason or another, are unduly harsh when compared to similar cases.

    But that overlooks the majority who undoubtedly deserve to be there (albeit perhaps as part of a wider rehabilitative effort), and the handful of sociopaths and psychopaths who should probably never be released.

    The emotions on the other side of the debate are well canvassed elsewhere.

    Our only refuge is statistics. Accurate statistics, devoid of emotional overlay, upon which we can base rational policy.

    I commend The Standard for repeatedly raising issues around corrections and providing a forum on which they can be debated in a reasonably sensible way. But on blogs we’re really preaching to the converted on the one hand, and the hopelessly lost on the other (as seen from both sides of the argument).

    Again I find myself lamenting our lack of media capable of, and willing to, engage in intelligent national debate.

  25. Oliver 25

    I think it’s worthwhile to point out that this is an Act bill that National has agreed to support to the first reading. I’d be extraordinarily suprirsed if this made it past select commitee.

    Just as a mildly relevatn aside, how many NZ 1st Bills did Labour support to select commitee without having any intention of pushing onward towards a second reading.

  26. 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…

    In other words, BORA says we should stop treating “first offence” as a mitigating factor? I hope not…

  27. Billy

    Not at all. The crime rate reduced because unemployment decreased significantly ant it was helped by the Government putting more resources into rehabilitation for young and adult offenders.

    I mention the incarceration rate and the length of sentences to counter the continuously stated counterfact that Labour was soft on crime. It is very clear to me they were actually hard on criminal offending.

  28. SBlount 28

    “I’ll admit that when someone says “prison’ my first thought is of the estimated 40 or so people in NZ (extrapolated from international statistics) who are wrongfully convicted.”

    I don’t think sentencing should be based on what is appropriate for an innocent person. A sentence is given to someone who has committed the offence. If innocent people have been convicted then the trial process needs to be improved.

  29. mike 29

    Why is that we hear of prisoners or criminals ‘rights’ ,when these same people have been trampling all over other peoples ‘rights’ for years.
    In my book if you remove, or try to remove or ignore , others rights, then you loose you own claim to any ‘rights’.
    I think removing and ignoring others rights to live without being beaten up three times (thats just the prosecution record – let alone the number of times they werent taken to court) is plenty enough reason to lock these bums up for quite some time – or take the signapore approch – give them a beating with the birch. Very few of the people (who talk about criminals rights ever talk about solving these problems without some form of serious punishment) seem to recognise that the birch works in singapore – and work very well. They dont have problems with crims coming back for a third serving!!.

  30. SBlount 30

    When it comes to rehabilitation and incarceration debates, I think the costs to society of crime are almost always underestimated.

    The death of a productive member of society like Karl Kuchenbecker means the loss of income for the people his earnings support (at home and via taxes), a loss usually greater than his salary for his workplace, and the loss of any voluntary contribution he made to his community. I would guess the cost to society of losing someone earning the average wage or more to be at least $500,000 per year ongoing.

    Rehabilitation of some criminals is possible but expensive to apply to all, it is well worth spending the money to avoid the worst outcomes though. And incarcerating someone who would end up killing costs $100,000 per year, is well worth the cost.

  31. @ work 31

    “mike
    In my book if you remove, or try to remove or ignore , others rights, then you loose you own claim to any ‘rights’.”

    See that scanned bit of text above…

  32. Herbert. 32

    Dear psycho, the BORA is as useless as tin foil toilet paper. Rudith told me that.

  33. @ work 33

    Hold the press: Don’t worry guys, David Garret says its only scumbags who will be put in jail for life, that makes it all ok then I guess.

    In other news, I am putting my name foward for position of “Cheif Scumbag Ajudicator”, any letters of support for my application are welcome.

  34. Tigger 34

    So will Finlayson vote for it? And since Power is Min of Justice can he vote for it (violating human rights is inherently not just). And of course, will the Maori Party vote for it given that Maori will disproportionately be incarcerated as a result of the law?

  35. I think three strikes and your out is a good law if it is used for the real violent offenders, if your a serial rapist, I don’t think you should be in society.

    [that’s what preventative detention is used for right now. SP]

  36. Pixie 36

    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.

  37. DeeDub 37

    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?

  38. Felix 38

    @work: Seconded.

  39. Ianmac 39

    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.

  40. 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.

  41. Ari 41

    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.

  42. Rex Widerstrom 42

    SBlount:

    I don’t think sentencing should be based on what is appropriate for an innocent person. A sentence is given to someone who has committed the offence. If innocent people have been convicted then the trial process needs to be improved.

    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.

  43. 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

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