Three Strikes arguments
The Herald reports:
The proposed three strikes bill would be grossly unjust and could result in an 11,000 per cent rise in time spent in prisons, an independent organisation on crime says.
This is a subtle form of bias. Calling an organisation “independent” is a positive brand which suggests expertise and neutrality. In reality the organisation quoted is a lobby group like the Sensible Sentencing Trust.
He pointed to the case of Leandro Andrade who, under the three strikes legislation in California, was sentenced to two 25-year sentences for stealing children’s videos worth US$153.54 ($219.58) from two Kmart stores. They were his third and fourth strikes; his first two were home burglaries committed in 1983.
A nonsense example as neither theft nor (non aggravated) burglary qualify as a strike offence under the proposed New Zealand law.
Commits two relatively minor offences (street robbery, for example), then a more serious offence (aggravated robbery) but a minor case. Instead of five years, they get 14. No parole.
The robber would have been warned after both the first and the second strike that a third strike will get a maximum sentence. They then make a deliberate decision to not only continue robbing people, but to do so using a weapon.
I think there will be a lot less people robbed after the third strike.
Commits two different offences (indecent assault, wounding with intent) then is negligent resulting in a death (or drinks and drives, killing someone) and gets life without parole.
It is not automatic that drink driving causing death will result in a manslaughter charge. In fact I would say normally it does not, and under this law Crown Law would have to agree to the third strike charge.
Offender commits a minor offence (wounding with intent in a pub brawl), then murder (self-defence, provocation or mercy killing) and gets life without parole.
I love how wounding with intent is called a minor offence. It is “… wounds, maims, disfigures, or causes grievous bodily harm to any person.” Frankly having someone disfigure you or cause you grievous bodily harm is not a minor offence – that is why it counts as a strike.
Secondly self defence is not murder.
Thirdly if you have a strike for wounding with intent, you should not murder someone if provoked.
Fourthly the mercy killing is so improbable. The sort of people who put their dying spouse or parent out of their misery do not tend to have criminal records, and in the hugely unlikely chance they did, the Judge does have some discretion to not impose the full strike penalty.
Consider Bruce Emery’s manslaughter conviction for chasing and stabbing a tagger. If he’d had two previous convictions from when he was younger and had reformed, he’d get life imprisonment.
The law is not retrospective. Any earlier offending by Emery would not count unless done after this law had been passed. Emery would have to have committed two serious violent or sexual offences, and would know he is on a third strike. That might well have persuaded him not to run after a tagger with a knife, and may have saved the taggers life.
Also I suspect Emery would have far less public support for what he did, if it transpired he did have a criminal record with at least two previous serious violent or sexual offences.
Two brothers kill their mother in a mercy killing because she has a terrible disease. One has no previous convictions and is paroled after a few years. The other has a previous strike and gets life with no parole.
The opponents of the law always go to the mercy killings, despite the miniscule number we have. Again it is very rare that people who put relatives out of their misery have criminal records, and there is some judicial discretion against a manifestly unjust sentence.
But more to the point, the brothers, if they are not morons, would agree that the brother with a previous conviction should not be involved, as he would face a longer sentence.
March 10th, 2010 at 10:55 am
Scraping the barrel. Hysteria politics at its worst.
Go into the offender’s database and you will countless examples of people who would not have comitted crimes as they would have been in prison and not out on parole. William Bell and the RSA murders comes to mind. Amongst the hysteria of the opponents, do not forget the real reasons behind the three strikes law and the true victims of the current law.
March 10th, 2010 at 10:56 am
So much made-up nonsense in this “independent” group’s claims. It’s basically an admission that they have no argument based on reality.
March 10th, 2010 at 11:03 am
Kim Workman from Rethinking Crime and Punishment independent????
What a joke
They may have well of quoted Peter Williams QC
March 10th, 2010 at 11:06 am
Goodness me. And to think that so many of us have been under the mistaken impression that criminal behaviour and more particularly violent criminal behaviour, isn’t elective. Whereas in fact, it could happen to any of us. Its just an unfortunate fact of life, like being forced to join the students’ association, or a bit of bad luck; like stubbing one’s toe or missing the bus.
Once again the all-seeing and all-knowing hand-wringing merchants glibly equate doing the time with full recompense for the misdeed. They implicitly view crime and punishment as a smorgasboard of options for those inclined to the dark side and now it seems that they are a bit pissed off that the are going to have to reprint the menu. It just isn’t fair.
March 10th, 2010 at 11:19 am
“The proposed three strikes bill would be grossly unjust and could result in an 11,000 per cent rise in time spent in prisons, an independent organisation on crime says.”
At least it’s a nice change from quoting the newspapers’ favourite official-sounding-biased-political-lobby-group, the Mental Health Foundation.
March 10th, 2010 at 11:33 am
How can it be unjust to lock up serial criminals?
It is unjust to leave them out to continue to prey on the law abiding public.
It is unjust to not sentence appropriately.
If you dont want to go to prison then simply obey the law and respect the community you live in and in the case of so many crims the community that feeds and houses them when they’re not inside.
March 10th, 2010 at 11:40 am
11,000% rise? Putting aside the scaremongering fact that a good proportion of the population don’t understand percentages, this is an interesting number. And it comes from this hypothetical situation:
“A person on a third strike who had committed a less serious case of aggravated robbery would receive the maximum 14-year sentence. If he would have received a three-month sentence in the present system, and only served half of that in prison, then the time served under the proposed bill would be 112 times greater, or an 11,100 per cent increase.”
True. But people are very unhappy that such a violent robber only spends 1.5 months in prison. It’s a full-board holiday for these mongrels. Also given the abysmal arrest and prosecution rate, it’s very likely that this person has committed many, many more violent assaults and burglaries than the three they have been prosecuted for.
So, 11,000%? Sounds good to me. I’d like to see the three-strikes extended to include burglaries as these have an horrific effect on peoples enjoyment of their homes. And there is a lot of evidence that what was once considered a non-violent crime is often a precursor to violence against people in the home.
March 10th, 2010 at 11:49 am
malcolm – I agree. For most people their homes are their biggest asset. When people get burgled they often feel they cannot live in the place any more, and all sorts of massive disruption ensues. Three strikes should be applied to burglary and property crimes as this is the most common crime that affects ordinary people. When a person is convicted of burglary it is rare that he hasn’t done dozens of other break-ins before finally getting caught.
March 10th, 2010 at 11:50 am
You should read the bill, DPF. There is zero discretion about the length of a third-strike sentence. It has to be the maximum.
A judge cannot say, “this manslaughter shouldn’t get a life sentence“. A life sentence is mandatory for third-strike manslaughter. A 14-year term is mandatory for third strike aggravated robbery. etc.
[DPF: The Q+A by the Minister says "However, the court can decide not to order the maximum sentence be served without parole if it would be manifestly unjust to impose such an order.]
March 10th, 2010 at 12:01 pm
Brian, I also doubt the scaremongering that 3-strikes will lead to overloaded prisons. The recidivism rate is very high (>80% overall I believe), so many of these people are in and out of prison on a regular basis, leaving a wake of crime. Shoving them away for a good long time period will lower the crime rate but will also lower the churn costs of the courts, probation service etc.
The only problem I can see of the 3-strikes policy is that the net is not going to be cast more widely.
Anyway it’s a start. Now they just need to make prison smoke and drug free. Is it really that hard?
March 10th, 2010 at 12:03 pm
Committing a robbery with a weapon is one way of committing an aggravated robbery. It happens to be a pretty serious way. You will note Workman suggested it was a minor case of aggravated robbery, you then uses a serious case to shoot him down. Consider this scenario instead:
D drives to service station. P & F exit car, walk in and demand money and cigarettes from shop person. D stays with car. Neither D nor P, nor F has a weapon, or threatens the use of a weapon, or suggests to anyone that there are weapons. With a few packs of cigarettes and $80, P & F get back in car and tell D to drive off, because they’ve just robbed the place. D says “I thought you just wanted cigarettes?” but drives off anyone, pockets a couple of packs and $30.
D is guilty of aggravated robbery.
["but a minor case"]
I understand the original example used excessive self defence, which the Herald shortened.
March 10th, 2010 at 12:04 pm
Why three strikes?
Why not just one strike?
Or five?
Why is three the magic number?
Oh, I know, there is, surely, somewhere, a study showing that three is the optimal number, right?
Something to do with diamonds?
March 10th, 2010 at 12:11 pm
umm … “drives off anyway“
March 10th, 2010 at 12:16 pm
Three seems like a good number, Luc. Most people only need one warning, a smaller number need two and the rest deserve no more.
March 10th, 2010 at 12:34 pm
“I think there will be a lot less people robbed after the third strike.”
“That might well have persuaded him not to run after a tagger with a knife, and may have saved the taggers life.”
These two sentences show the problem with this bill. There is no evidence to support this will create such a response in criminals. None. Your defence of the Bill stems from the detterence aspect which is close to non-existent. Those recidivist offenders who are the target of this legislation do not draw up a pros and cons list before they commit their crimes. Just be honest and admit this is a sop to those who want punitative sentences and to keep people away from society forever, this is a shallow political act, and the consequences have not been adequately thought out. This Bill is in no way a preventative measure, and those who have supported it are fine with that, they want criminals to be harshly punished. Please don’t try to weave nuance into this knee-jerk legislation. A crime should be judged on its the facts and a sentence laid down accordingly, mandatory sentencing has no place in our justice system.
March 10th, 2010 at 12:48 pm
Geez, Malcolm, I’m on marriage No 3 – does that mean it’s for good this time?
March 10th, 2010 at 12:51 pm
Reading the bill, I see what Graeme is saying. The no parole can be waived at third stroke, but the sentence must remain the maximum. So manslaughter would still get a life sentence, but eligibility for parole after x years could be granted]
March 10th, 2010 at 1:39 pm
Yeah. I hadn’t realised this was what would happen until recently. It’s not how it’s been described in the media, or even by people like David Garrett, or Ministers:
“The Bill was transferred to Ms Collins from Justice Minister Simon Power. Mr Power said last week he was comfortable with the Bill because a judge could decide it was manifestly unfair to impose a three strike sentence, because the Bill was not retrospective, and because it only affected those older than 17.”
March 10th, 2010 at 2:08 pm
Where to begin?…
Perhaps with malcolm, who suggests:
Been to prison have you, malcolm? Having sampled it’s delights on both sides of the Tasman, it’s not. It’s a dehumanising and terrifying place where you’re under constant stress from the knowledge that, at some point, it’ll be your turn to be attacked. And don’t bother with the “keep your head down” argument… my turn came when walking past someone I’d never laid eyes on before, to whom I said nothing and (in the finest traditions of prison) didn’t even make eye contact with.
Prisons as they exist at present are probably just punishment for someone who’s committed a violent offence… especially someone who’s on their third. But they are most certainly not the environment into which any non-violent offender should be placed (no, not even (non aggravated) burglars… and I’ve been a victim of burglary so I do know what that “violated” feeling is like).
Or with emmess who dismisses the debate with:
There’s many (myself included) who think Garth McVicar and his organisation a misnamed joke. There’s a vast amount of truly “independent” research on crime, punishment and prisons but unfortunately the media are too lazy to research it, so they alternate between extremes – McVicar one day, Workman the next – and call this “balance”.
I’d like to see truly independent, researched, evidence-based reports debated and discussed and regularly alert the (Australian) media to these. I’ve yet to see anything make it into print, other than hyperbole from vested interests.
Talking of vested interests, there’s one group I would listen to – prison officers. They know what life in a prison is like. They know the character of the offenders with whom they have to deal. And they know the likely effect of any law changes. And they say three strikes will put them at risk.
But I guess they, like the non-violent prisoners confined with the murderers, thugs, rapists and gang members, are just collateral damage in the race for votes.
March 10th, 2010 at 5:39 pm
As currently drafted the bill doesn’t include the crime of marriage. But we’ll get there
March 10th, 2010 at 5:59 pm
No, I’m pleased to say that I have not been to prison. I’m sure your experiences in prison were as you describe, but would you feel the same if you were yourself a dehumanised and violent person such as many of the gang members and associates who are in and out of prison? I doubt that prison is markedly more violent and terrifying than their lives outside prison and I understand their gangs are mirrored within the prisons. For that reason I stand by my comment that for such people, receiving a 1.5 month sentence for a violent assault has about as much deterrent effect as a full-board holiday.
Given your experience, do you think prison has any deterrent effect for violent criminals?
March 10th, 2010 at 8:02 pm
malcolm: An excellent question. My experience (as an inmate and now as someone who does some of his work with offenders inside and outside prisons) is that violent offenders are like the rest of us in that what works for some won’t work for others.
Very unscientifically speaking I’d classify violent offenders into:
- The bad bad
- The mad bad
- The miscategorised
- The misguided
For the first group, who take pleasure not just in the fruits of their crimes but in the fear and / or harm they cause in others (indeed sometimes that’s their only motive), definitely not. These are the people for whom prison isn’t tough enough.
The “mad” bad include people with diagnosed mental illness which falls short of the legal definition of “insanity”, and those with addictions to legal and illegal drugs. They ought to be confined, but to secure treatment centres like we used to have, till “care in the community” became the PC touchstone. As a result these people are trapped in a revolving door justice system.
The miscategorised are those whose crimes sound as though they’re terrible, but really fall short of being so. For instance if a young woman waves a penknife at someone in the street and says “give me your mobile” it’s likely the Police will charge her with armed robbery. Now I’m not saying this isn’t a serious matter, but when people hear “armed robbery” they tend to think of a gang of heavily armed men terrifying bank tellers. In fact the penknife case I’ve referred to was a client’s first offence yet she got five years in amongst serial killers and the like. No actual violence took place, and had her victim said “no” (or better yet, run off… it was a busy city street), the offender would have run off… so in effect she’s not really a “violent” offender.
The misguided is probably the most debateable group, but into this category I’d put many (though by no means all) young men who’ve grown up around violence, with poor (or no) male role models, and have drifted into gangs and petty crime. They’re exploited by the “bad bad” to carry out crimes of ever-increasing seriousness. Again I’m not suggesting no jail, but I am suggesting different jail, where their behaviour might be able to be turned round. Instead they’re locked up with the very people who exploit them.
And then, of course, there’s the large number of non-violent offenders who don’t belong there at all but should be repaying society and their victims. I’m reminded of the “humour” post DPF did a while back about the men who’d has sex with a goat being forced to marry it so they’d have to pay the owner a dowry. Funny, yes… but also a damn site more useful to the goat owner than if he’d been in NZ, where the offenders would have faced three years in jail (why?!) and he wouldn’t have got enough to pay for ointment for his goat.
March 10th, 2010 at 10:23 pm
Very insightful comments, Rex. It sounds a lot like what I have heard/read many times before.
I think the public are so frustrated with the daily litany of crime and violence, much of which they only read about, but nonetheless they feel that crime is out of control, punishments are not fitting and offenders are being given too many chances. And when they read about a murderer who has in excess of 100 previous convictions or a murderer who gets parole after 9 years, they become justifiably inclined to say “fuck it, the so-called experts have had their say and tried their innovative ideas, but now just lock these bastards up”.
I appreciate that the lock-em-up crowd are conflating a lot of different issues (sentencing, police efficacy, rehabilitation etc) but this is all the public know and it’s the only message they can send when they become frustrated with an unsolved problem. Most people are reasonable and are welling to let experts try new ideas, but if they’re seen to fail, then the public are not likely to be interested in the theory when it has failed to yield results. They’ll just say “fuck it, lock them up”.
I think that is the point we are at in NZ.
March 10th, 2010 at 11:04 pm
Do we have m/any female serial killers?
The maximum for bestiality in New Zealand in seven years, not three. That said, prison usually doesn’t resultt from a bestiality conviction in this country. Usually it will be something like supervision (with the ability for the parole officer to order counselling).
March 11th, 2010 at 4:37 am
malcolm: Your comments too are insightful… I think that’s exactly where people are at, with good reason. The reason you’ve heard it said many times before is that criminologists know this… they try to get politicians to listen not because they’re “the hand wringing brigade” but because they know that effective rehabilitation = less crime. You cannot protect society without bringing about change in the offender unless you lock up everyone forever.
I have children, Some of them have children. I don’t want some thug harming them, or even burgling their home. I want to protect society and so, I believe, do Kim Workman and yes, even Peter Williams. We all disagree, to a greater or lesser degree, on the cure.
But all the politicians want to do is indulge in a vote-chasing “law ‘n’ order auction”. It’s not going to work and we’re going to have increasing chaos on the streets and in our homes. They’re selling us what most of us want to hear, and they’re doing it at the expense of the safety of our families.
Graeme:
I’m talking Australia. She’s in jail with Catherine Birnie (who, with her husband, kidnapped, raped, tortured and killed foiur young women), two women who filmed one another battering a teenager to death and then dumped her body in a rubbish bin (and thus became known as “the wheelie bin killers”) and suchlike. Hardly rehabilitative for a young woman with no violent tendencies – the outburst that led to her imprisonment was due to misprescibing of legal drugs to “cure” a four-year morphine habit (during which she had commited no offences despite being an addict).
As for the bestiality thing, I stand corrected. Seven years?! I understand judges would rarely impose a custodial sentence but the fact it’s in the statute proves my point that lawmakers don’t stop to think what’s best for the perpetrator(s), the victim(s) and society (or even the goat!) but what sounds good to the electorate.
March 11th, 2010 at 8:11 am
DPF started his post mentioning bias. it’s a good point, except the bias I look at is the bias against Maori: about 15% of the population but 50% of our prison inmates, according to Joris de Bries today.
Now we are not alone in the world in oppressing an indigenous population or even a marginalised minority group like African-Americans, and regular Kiwibloggers know the other case I have spent some time on, but there are heaps more. So I’m not pointing any fingers at Kiwis as being particularly bad people.
But it is certainly time to face up to what is at once a tragedy for Maori and for NZ, an embarrassment in the wider world, and mainly a failing of European New Zealanders. We must recognise the deterministic aspect of Maori offending, and make a genuine effort to somehow remedy the malign environment we have created for our indigenous people.
We are wasting a lot of talented lives.
We need an alternative to the Sensible Sentencing Trust, one that rather than pander to ignorance and prejudice (and the primitive bloodlust of revenge) actually shine the light on a way out of this quagmire.
I don’t pretend to know what the answer is, but I sure as hell would support any practical, non-exploitative (which automatically excludes Destiny Church) suggestions.
I guess that’s the cue for the hang ‘em at dawn mob to arrive!