Striking out three strikes

Promises to get tough on crime are the cliche of General Election campaigns.

It is not difficult for candidates to appeal to voters’ fears about rising crime (even if the statistics show something different) and convince them that if their party’s policing/incarceration policies are not brought to bear, the streets will soon run with blood and nobody will be safe in their beds.

Locking up more baddies for longer has got to be good for everyone. Right?

That was the rationale behind what was commonly known as the 2010 three strikes law (officially the Sentencing and Parole Reform Act) brought in by the National-led government as part of a deal with the Act Party.

Last week, Justice Minister Kris Faafoi announced the repeal of the law, after the Labour Party’s plans for this in 2018 were thwarted by New Zealand First.

The 2010 law’s stated purpose was to deny parole to certain repeat offenders and to offenders guilty of the worst murders and to impose maximum terms of imprisonment on persistent repeat offenders who continue to commit serious violent offences.

The idea was that the threat of the maximum penalty would deter repeat offenders.

But, according to the Ministry of Justice impact report on the repeal of the law, there is no substantive domestic or international evidence that can conclude whether a three strikes regime reduces serious crime.

The report says since the law came into effect there has been a small decrease in robbery and sexual assault, but both of these crime rates do not fall far outside rates seen in the years before the law was in place.

The idea wannabe offenders carefully weigh up the severity of their likely sentence before deciding whether to commit one of the 40 qualifying violent or sexual offences seems like magical thinking.

The law has always been controversial because it requires judges to impose particular sentences without allowing them to consider the seriousness of the offending or other circumstances surrounding both the offence and the defendant.

Armchair judges might applaud the certainty of the three strikes approach, but real judges must weigh up the evidence and mitigating or aggravating circumstances carefully, consider the law and make judgements which are just. Justice should never be a tick-box affair.

Those against the repeal of the law may believe if the law was in place for longer the benefits would show up, but if this law is already resulting in unfair treatment of some offenders, that is not a gamble anyone should be willing to take.

In one case, the Court of Appeal found the third strike sentence of seven years’ imprisonment imposed on a mentally ill man for an indecent assault went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders aware of all the relevant circumstances.

It is not as if judges cannot already bring down severe penalties for the most serious offenders, including preventive detention where although a prisoner might be released on parole they are managed by the Corrections Department for the rest of their lives and can be recalled to prison at any time.

Repealing this law, which former justice minister Andrew Little once described as the ‘’ high watermark of policy stupidity’’, is the right thing to do, but the issue of what to do with those already sentenced under the law (without causing further harm to victims) is not yet resolved.

The repeal Bill, as introduced, would see those already sentenced serve their sentence as originally imposed. It excludes entitlement to compensation, nor does it include transitional arrangements for those currently serving sentences of imprisonment for a strike offence.

However, the select committee has been invited to consider whether the Bill should include provisions for those already sentenced.

The controversy is not over yet.