Three Strikes Debate

April 5th, 2010 at 10:00 am by David Farrar

The Herald reports:

The Government’s revised “” bill is estimated to cover more than five times as many criminals as the original legislation, significantly widening it from the original target of the “worst of the worst” offenders.

The issue was highlighted in a Maxim Institute-sponsored lecture at Victoria University in Wellington by Auckland University professor Warren Brookbanks and law lecturer Richard Ekins.

It’s good to have debate on this, as people should be aware of what the law will do.

For my part it would be nice to have a focus on how many victims would have not been killed, raped, assaulted or robbed if this law had been in force for the last decade, not just a focus on how many offenders will have been affected.

The Sentencing and Parole Reform Bill, now before Parliament, would set up a warning and sentencing system for anyone convicted for one of 40 qualifying offences deemed to be serious violent or sexual crimes.

Strike one would be a normal sentence and a warning; strike two would be a sentence without parole; strike three would be the maximum sentence for that offence, without parole.

The original bill held that a conviction counted as a strike for a violent offence where the sentence was five years or more.

The initial proposal called for an extra 132 prison beds in the next 50 years; the new one is estimated to require 725 beds.

Personally I’m comfortable with that. The original proposal would have affected well less than a dozen criminals a year.

I don’t think we have a high number of criminals in this country. We just have a number of criminals, who commit a high number of crimes each. And having a rotating door policy where they are in and out of prison after not just their third serious offence, but sometimes their 100th offence needs to come to an end.

Professor Brookbanks said that “qualifying offences” was a much lower test, as it applied to convictions for certain offences regardless of how serious or trivial they were.

“The shift from qualifying sentence to qualifying conviction radically widens the scope, bringing far more offenders into the scheme,” he said.

Yes it does, deliberately. The old scheme would have had little deterrence value in my opinion. The good feature of this new scheme is certainty (and remember certainty of being caught is one of the biggest deterrences to crime) of sentence.

If you have had two previous strikes, you have had a Judge in court tell you to your face that if you commit another serious offence, you will get the maximum sentence for that crime with no parole. There is basically no chance of getting 12 months jail, and out in six. You will get a sentence of (generally) at least seven years with no parole for your next serious offence.

He said that with no incentive to plead guilty to a strike-three charge, there would be more trials and appeals, which would be more stressful for victims and see court costs rise – a point raised by Labour critics.

A fair point, but how many defendants facing a third serious criminal charge, do plead guilty? Give us some hard numbers.

But as I said, the numbers I really want to see is how many fewer victims of crime there would have been, if this had been the law up until now. How many crimes have been committee by criminals after they have had a third serious offence conviction, during the period they would have served if given the maximum sentence?

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31 Responses to “Three Strikes Debate”

  1. tvb (4,229 comments) says:

    There is no reason why this bill cannot be made retroactive, that is past convictions can count as strikes. What we are dealing with here is sentencing policy and limiting the discretion of judges on sentencing policy. And the parole board on who can qualify for parole. I would include burglary (of residential property) as a strike. Burglary of a residential property goes far beyond the property stolen but the psychological harm it does to the victim – that they no longer feel safe in their homes. It is wrong to see residential burglary as merely a property offence. Recidivist burglars are a threat to the safety of the community. As for the strikes I see no reason why the latest strike one and two convictions cannot be counted for people. And people on a strike 2 receiving a written warning served on them they are on strike 2 and can expect to serve the maximum term for a qualifying offence. That is people who have two strikes get a warning they will serve the maximum term should commit (yet) ANOTHER qualifying offence. There are some bad people out there they need to be locked up.

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  2. David Garrett (6,638 comments) says:

    DPF: We agree that the fundamental thing all commentators seem to be missing is the impact on victims. You have asked for actual numbers of potential victims saved by the Bill as it is now drafted – a fair enough question but difficult in practice to answer for the following reasons: 1) the Bill has been through a number of incarnations including the original ACT version which I drafted and ACT campaigned on; 2) the confusing police offence codes which do not match the sections of the Crimes Act upon which the bill (and all previous versions of it) is based; 3) the difficulting of obtaining accurate offender/sentence data because of the Privacy Act; and 4) the uncertainty of the level – if any some would say – of deterrence as a result of the new regime.

    So here’s my best attempt at an estimate of impact on victimization. The original ACT draft included a shorter list of offences with no qualifying sentence. The “77 people would be alive today if three strikes was in place at the time they were killed” claim was based on OIA requests I made in 2007 asking the following question(s) “How many persons serving sentences for murder [or, in a follow up question, manslaughter] had, at the time they committed the homicide for which they are now incarcerated, served at least three sentences for serious violence?” (Then followed a definition of “serious violence” based on police codes for violent offences from which the original Bill’s list of offences was eventually drafted) The answer to those questions – when I eventually got them – was 77, the figure ACT campaiged on in 2008.

    After the election, ACT’s “three strikes” bill was merged into the Sentencing and Parole Reform Bill, with two major changes to the “three strikes” component of it: firstly the qualifying sentence of 5 years was added before a conviction for a listed offence could be a “strike”; and secondly the list was expanded from my initial somewhat arbitrary list of “nasty violent offences” to include all 35 or so offences of serious violence which carried a maximum setence of 7 years or more.

    To be honest, we did not believe that the five year qualifying sentence would make a lot of difference, perhaps reducing the 77 to 50 or so. Based on our understanding of the position at that time, that was a compromise we could live with. Then Kim Workman put in an OIA with a question something like this: “of the 420 persons presently serving a sentence for murder or manslaughter, how many would have been prevented from killing if the Setencing and Parole Bill as drafted [then] was in force at the time they died?” I believe everyone was astounded that when the qualifying sentence of five years was included, the number went from 77 to 0.

    We then researched a number of scenarios using definitions of “strike” including 4 and 3 year qualifying sentences. That led to the realization that including ANY qualifying sentence was problematic for at least two reasons: firstly it was not hard to compile a list of about 30 offenders who had committed listed offences in very nasty circumstances but got prison sentences of less than three or even two years; and secondly, a qualifying sentence of any length remained open to judicial manipulation whereby someone could receive – say – 10 sentences for listed offences, each of them just less that the qualifying period, thereby avoiding a “strike” conviction”.

    The point of the legislation was and always has been not about locking people up per se, but preventing habitual violent offenders harming people, or eventually going on to become killers if we left them in the community long enough. On balance, the revised version is probably just as good or perhaps better than the original draft. It avoids the potential BORA problems arising from the 25 year to life sentence at third strike, and means habitual violent offenders will be incarcerated for very long periods, thus preventing them committing further harm by reason of their incapacitation.

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  3. Graeme Edgeler (3,272 comments) says:

    To be honest, we did not believe that the five year qualifying sentence would make a lot of difference … Then Kim Workman put in an OIA … I believe everyone was astounded that when the qualifying sentence of five years was included, the number went from 77 to 0.

    I *knew* it was Workman’s fault!

    For my part it would be nice to have a focus on how many victims would have not been killed, raped, assaulted or robbed if this law had been in force for the last decade, not just a focus on how many offenders will have been affected.

    Wouldn’t a better focus be on how many victims would have not become victims under various scenarios for spending all this extra money, rather than comparing the spending of any extra money (as on extra prisons, prison officers, etc.) as a result of three-strikes, with the spending of no extra money at all?

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  4. MikeNZ (3,234 comments) says:

    How many crimes have been committee by criminals after they have had a third serious offence conviction, during the period they would have served if given the maximum sentence?

    Very Good point David
    That this figure isn’t generally known and available to the genral public shows a lack of competency on the behalf of the countries prisons, judiciary and criminologists in my opinion as this has been a talking point for a number of years.
    That we need a better database for this area is also shown up too.

    I hinestly think we need a two teir system with 3rd offenses never mixing with those under 3 offenses and enough borstal training sites alongside the lower 3rd sites.

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  5. Hagues (711 comments) says:

    “Professor Brookbanks said that “qualifying offences” was a much lower test, as it applied to convictions for certain offences regardless of how serious or trivial they were.”

    I would like to know how a conviction for one of the qualifying offences could be regarded as “trivial”?

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  6. Graeme Edgeler (3,272 comments) says:

    I would like to know how a conviction for one of the qualifying offences could be regarded as “trivial”?

    You get somewhat drunk, misread a signal at a party and grab someone’s bum.
    Indecent assault. Seven years.

    Two seventh formers (sorry, year 13s). Hitting up third formers for their lunch money.
    Aggravated robbery. 14 years.

    You see a mate climb from out the window of an abandoned warehouse. He had gone inside for a bit of laugh, intending to have some “fun” destroying some abandoned boxes, and whatever else he could find. He had a crowbar with him. He heard sirens and was leaving before breaking anything. You give him a lift to help him get away from the cops.
    Aggravated burglary (aiding and abetting, convicted as a party to the offence). 14 years.

    You’re going through a rough patch: unexpected bills have come through, your wife has been diagnosed with cancer, something like that. Not really paying attention when you supervise an apprentice mechanic install replacement brake pads on a car: wrong size, poorly installed. Driver fails to take a bend because they couldn’t slow down enough, and dies.
    Manslaughter. Life imprisonment

    Not all “trivial” exactly, but still not exactly the type of crime you think of when you talk about “serious violent crime”.

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  7. David Garrett (6,638 comments) says:

    Good points Graeme – albeit somewhat academic and fanicful. How would two Year 13′s – even if they were not too bright and thus over the qualifying age for this regime – have managed to get two previous “srike” convictions while over 18, and thus be eligible for the maximum sentence for stealing lunch money?

    As you are aware there will be (and always has been) prosecutorial discretion. As a matter of policy – as I said on the record at the Maxim lecture – third strike prosecutions will be decided by senior police from the Commissioner’s Office, together with the Crown Solicitor of the District. I dont believe ANY of your examples would in practice give rise to a third strike prosecution, much less a conviction.

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  8. Inventory2 (10,160 comments) says:

    With all due respect Graeme, you’d have to be either a) somewhat stupid or b) very unlucky to “suffer” the hypothetical set of circumstances you outline ;-)

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  9. Graeme Edgeler (3,272 comments) says:

    David/I2

    Sorry if I wasn’t clear. I wasn’t suggesting those as third strikes. Although I can see how you’d think that when I included the maximum sentences. My comment was in response to Hague’s query about Brookbanks’ implication that there could be “trivial” strike convictions. I was giving examples of offending that would constitute strikes, but that I wouldn’t class as “serious violent offending”.

    I was including the maximum sentences to show that there could be a disparity between types of offending, and maximum sentences. Some aggravated robberies are very serious, others are “trivial”. Yet all carry the same maximum sentence. This is why I believe it’s important that judges are in a position to weigh the actual offending when considering imposing sentences.

    As you note, David, two seventh formers couldn’t be in a position to receive a third strike conviction. My apologies if anyone misread my comment as suggesting that these examples were about the sentencing of third strikes. Rather the comment was about “trivial” offending that counts as any strike.

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  10. Hagues (711 comments) says:

    Thanks Graeme for those examples. However I think you have over egged the pudding by putting these examples of so-called trivial matters along side the maximum sentances. As we all know the only way someone automatically gets the maximum is if they already have two strikes. So there is no way that someone is going to get these sentences in these examples.

    “You get somewhat drunk, misread a signal at a party and grab someone’s bum. Indecent assault.” The penalty assuming conviction is exactly the same as currently, the only difference is that you get a warning about no parole next time. So that is not extreme.

    “Two seventh formers (sorry, year 13s). Hitting up third formers for their lunch money. Aggravated robbery.” Has there ever been a case of anyone getting charged for this? I would assume its normally dealt with in school. It would have to get pretty serious for the police to get involved, and then there would probably be only warnings or at worse diversion. But again if they got a strike and warning, it may make them think about the consequences of their illegal behaviour more seriously.

    I don’t believe that wonton distruction of property or running from the cops to be trivial, nor is assisting someone doing these. They get what they deserve.

    The manslaughter example again fails as it is assumed that this is just some big mistake that only happens once in a persons life, so the strike against their name is the only difference. Since it is assumed they are otherwise an honest law abiding citizen, then there is no difference in outcome than presently.

    If someone did have strikes against their name and committed an offence that is so-called “trivial” and gets a longer sentence, well that goes in the category of “too bad.” Shouldn’t have committed the earlier crimes, and should have smartened up their act. Its called personal responsiblility.

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  11. Hagues (711 comments) says:

    Oh and it should be noted that the judge still has discretion of sentence for the first and second strike to take into account whetaher something was serious or so-called “trivial.” Anyone who makes it to the third strike gets no sympathy from me if the third offence is so-called “trivial” and they get the max sentence.

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  12. NOt1tocommentoften (436 comments) says:

    Hagues – “the too bad basket” is a phrase that makes me sick. It suggests that all of this is simply the best we can come up with without wanting to go into the detail. Fortunately our criminal law is based on theoretical situations and worst case scenarios, and discretion that can deal with the shades of grey which exist everywhere. This sort of law creates hard rules and fails all of us. Focusing on the victim is the easiest way of dismissing the sorts of the examples that Graeme has noted. I’m disturbed that these points are dismissed and that no one is attempting to erase these sorts of horrendous outcomes from arising.

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  13. Graeme Edgeler (3,272 comments) says:

    Anyone who makes it to the third strike gets no sympathy from me if the third offence is so-called “trivial” and they get the max sentence.

    The greatest injustices will likely come from those with a series of problems with the justice system, who have strikes reactivated many many years after the convictions, after turning their lives around. Most people who suffer strike consequences won’t get sympathy, but taking so much discretion/judgement from judges is going to result in injustice sooner or later.

    For example, someone who, had a bit of an alcohol problem as a young man, always getting into fights, minor squabbles, convictions for things like fighting in a public place, offensive behaviour etc., with a couple of indecent assault convictions – some short stretches in prison (a few months, maybe a year or so for their second indecent assault) who then turns their life around: quits drinking, gets a job, makes something of their life, and is then found in one of the trivial situations I ouline.

    No-one has real sympathy for what they were doing as a young man – it’s no doubt they were a screw-up and deserved what they got from the criminal justice system. But 20 or 30 years later – finding themselves facing a manslaughter charge as I outline above (which is not terribly different from a real example in New Zealand involving an aircraft mechanic convicted of manslaughter who received a sentence of 300 hours community service) – the mandatory sentence of life imprisonment, even if reduced to 10 years non-parole is still clearly unjust. That you wouldn’t feel sympathy for such a person is more than a little sad.

    [DPF: Maybe one could have a strike expire after an extended period of time of crime free activity? So if you are not convicted of any crime for say 12 years, you can apply for a strike to be wiped?]

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  14. reid (16,061 comments) says:

    Graeme, do you think such cases as you detail in your 2:38 would comprise the majority of third-strike convictions or would they be the exception?

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  15. Hagues (711 comments) says:

    Graeme I believe there is a provision for “manifestly unjust.” If someone ends up with life in prision due to some accident and a few convictions from many many years ago after which they turned their life around, then I would assume the manifestly unjust rule would kick in. We can’t legislate based on some extreme “what if?” situations that are hypathetical in nature and as such unlikely to present themselves in reality. I see the job of keeping the population safe from criminals one of the core functions of the government. If people don’t want to play by the rules they have to face the consequences. This law is about making our streets (and homes) safer for those who are law abilding, its not about making sure the criminals get let out of jail again in a timely fashion.

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  16. Graeme Edgeler (3,272 comments) says:

    Certainly the exception – as I note.

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  17. Graeme Edgeler (3,272 comments) says:

    If someone ends up with life in prision due to some accident and a few convictions from many many years ago after which they turned their life around, then I would assume the manifestly unjust rule would kick in. We can’t legislate based on some extreme “what if?” situations that are hypathetical in nature and as such unlikely to present themselves in reality.

    1. The manifestly unjust exception only arises in with respect the the non-parole period, not the sentence. A life sentence will be mandatory, with absolutely no exceptions, for manslaughter as I’ve outlined above. The fact that this will be manifestly unjust will allow the judge to reduce the non-parole period from 20 years, to 10 years.

    2. We can legislate based on extreme “what if?” hypotheticals. For example, at the moment, the maximum sentence for manslaughter is life imprisonment. That’s a pretty stiff sentence. However, in the extreme example of that manslaughter being the result of negligent supervision of an aircraft mechanic, the judge was able to take this into account and imposed a sentence of community service.

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  18. Graeme Edgeler (3,272 comments) says:

    [DPF: Maybe one could have a strike expire after an extended period of time of crime free activity? So if you are not convicted of any crime for say 12 years, you can apply for a strike to be wiped?]

    An excellent idea.

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  19. Rex Widerstrom (5,307 comments) says:

    Yes, we can look at the victims. We can make a large chunk of society fear they will be victims and then we can play on that to gain ourselves a bit of publicity (when we’re not misbehaving round the water cooler) and a lot of votes. But that’s like focusing on, say, road accident victims – it does nothing to stop their numbers increasing.

    The only way to protect society is to examine the causes of crime, quantify them and then work to reduce them. That includes separating the truly bad from the mad, the stupid, the reckless and the misguided (all of whom have a chance at rehabilitation); keeping the bad off the streets and sorting out the rest. But we don’t have to wait tiill they’ve committed even their first strike. The type of person most likely to offend is well known:

    The features in common that emerged in more than 70 per cent of criminal cases are these: the person before the court was male, under 35, unemployed, with relatively low intelligence, a history of mental illness, addicted to drugs and/or alcohol, a history of a dysfunctional childhood family plus a current domestic situation that is dysfunctional, poor education and a bad driving record.

    In other words, the reason the alleged offender is before the court is rarely due to some isolated or aberrant behaviour, which is the way it is frequently portrayed in the media. Rather, trouble is part and parcel of the circumstances of their entire life.

    Imagine if, instead of macho posturing about how we’ll soon have a reason to lock these people up and throw away the key, we aimed to protect society by ensuring they didn’t offend against one victim, let alone three?

    That we addressed their educational needs and better monitored their outcomes [Partial tick. National Standards will help with the monitoring, we've yet to see a commitment to improving the system].

    That we identify and appropriately treat those with mental illness, in a purpose-built facility if needs be [Fail. Successive governments' adherence to politically correct views on "treatment within the community" exposes society to unnecessary danger and the mentally ill to a life in a rfevolving door prison system].

    That we ensure everyone has a job [Obvious fail. And with the present Minister, likely to be ongoing].

    That we take a realistic approach to drugs and ensure sufficient resources exist to treat those who are addicted (while locking up and throwing away the key those who peddle the poison) [Complete failure by successive governments].

    That we intervene to ensure every child has a right to a decent childhood rather than worrying about the “rights” of hopeless and abusive parents, and at the same time create resources to which parents can turn if the job of parenting becomes too difficult [Mainly a fail. Governments tend to tinker round the edges with nonsense like a Families Commission, but essentially never take the hard decisions].

    If the politicians slavering for the chance to hand out life sentences to prisoners did anything at all to stop them becoming prisoners in the first place, I’d respect their motives for backing “three strikes” and other “get tough” measures. But when they’re focused entirely on punishment and not on prevention – indeed when a trail of victims is necessary for their policies to even take effect then I find their posturing sickening.

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  20. Hagues (711 comments) says:

    [DPF: Maybe one could have a strike expire after an extended period of time of crime free activity? So if you are not convicted of any crime for say 12 years, you can apply for a strike to be wiped?]

    I was thinking about something similar, but would expect the time period to start after your last sentence has finished, not after your last conviction (otherwise you’d be counting the time in jail).

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  21. Luc Hansen (4,573 comments) says:

    Rex

    You have clearly been thinking.

    But this is Kiwiblog.

    I did a little research this afternoon and was able to work out that we imprison Maori at about 12 times the rate of Europeans. So about 1.75% of Maori males locked up at any one time as opposed to about 0.14% of male Europeans (aged 15 to 64).

    Also, the corrections department has an illuminating graph that shows sentences of greater than 2 years rapidly increasing since 1987, and Collins’ figures appear to show that crime rates are increasing just as rapidly as well.

    But we want to do more of the same, but harder, faster!

    As someone said once: “Houston, we appear to have a problem.” But by then it was too late.

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  22. jeremyn (19 comments) says:

    Hey.. why stop at the last decade? For a start, if this had been brought in back in the 80s Ben Smart and Olivia Hope would still be alive.

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  23. Redbaiter (13,197 comments) says:

    There’s a reason more Maori are in jail Lucy, and that is that they commit more crime. Why do they commit more crime? There’s a few simple reasons for that too Lucy, and most of them involve you.

    One is that if people like you keep preaching the mantra that if you consider yourself unfairly treated on any social scale, this is a license to steal from and commit violence against those you consider responsible for the unfair treatment.

    Another reason is another mantra of the left- “poverty causes crime”, again a message that gives license to those too uneducated to know better to commit theft and violence, while countries that are much poorer than NZ do not suffer anything like our level of crime.

    Yet another reason is the Progressive’s gradual chipping away at morality, again preaching the destructive mantra that there is no good or bad and that its all “relative”. Morality is the cement that binds out society together, but its being gradually and deliberately eroded by the Progressives in yet another destructive plank to Marxist political power.

    Its the welfare policies of the left that have again chipped away at and eroded such concepts as self respect. Its leftist educational policies that have dumbed down our students and made them brain dead socialist zombies wholly dependent on the state rather than real people with the ability to lead their own independently fulfilling lives.

    The left preaching so arrogantly about crime is just so much cant and artifice and hypocrisy. Its all down to them, (or you Lucy) and what’s more, they damn well know it is. Its all part of the plan.

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  24. Ryan Sproull (7,055 comments) says:

    One is that if people like you keep preaching the mantra that if you consider yourself unfairly treated on any social scale, this is a license to steal from and commit violence against those you consider responsible for the unfair treatment.

    Another reason is another mantra of the left- “poverty causes crime”, again a message that gives license to those too uneducated to know better to commit theft and violence, while countries that are much poorer than NZ do not suffer anything like our level of crime.

    In conclusion, people chanting “poverty causes crime” causes crime.

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  25. reid (16,061 comments) says:

    poverty causes crime

    Well. Does it?

    How come not all poor people aren’t criminals? Luck?

    How come all poor people aren’t angry violent wankers? Luck?

    What makes the difference between them and us? (If it’s not money?)

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  26. Rex Widerstrom (5,307 comments) says:

    Are the (some) lefties who say “poverty causes crime” as though it causes all crime really that stupid?

    Are the (some) righties who say “there’s no link between poverty and crime” really that stupid?

    It would appear so. Let me spell it out for you…

    If you’re too poor to feed your family and you pinch some food then yes, poverty has caused your crime. If you’re poor and you come home and beat that family then poverty hasn’t caused your crime (it has undoubtedly caused you stress, but there are other ways of dealing with it). And if you claim it has in an effort to slide past responsibility, you’re a shit.

    To answer reid’s question, the difference between poor people who are violent and those who aren’t is exactly what separates the violent rich from the nonviolent rich. For want of a better word, I’d call it character.

    The one exception to this rule is the mentally ill, the vast majority of whom are poor.

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  27. Luc Hansen (4,573 comments) says:

    So for RB and reid, the striking correlation between harsher penalties and increasing crime is just pure statistical fluke. No causation whatsoever.

    So simplistic, but hey, this is Kiwiblog!

    And reid, yes, for many poor, if not most, the difference between being in the courts or not is exactly that, luck. As in – not caught. Or even not victimised by the police who routinely pick up innocent people and have them thrown in jail simply for being poor and/or brown. It happens more than you would believe.

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  28. reid (16,061 comments) says:

    “the police who routinely pick up innocent people and have them thrown in jail simply for being poor and/or brown”

    I presume you’ll be able to provide actual names and numbers there Luc. This is a rather serious allegation.

    Or is this just your personal fantasy?

    Which one is it?

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  29. Mr Elbow (30 comments) says:

    Geez Rex – your arguments might get more traction if you didn’t preface them with dumb comments about ‘water coolers’. Play the ball, not the man.

    Fact is there is no reason why governments can’t be tough on serious crime AND the causes of crime – they’re not mutually exclusive. Too many people seem to forget that.

    Agreed, addressing the causes of crime is very important – but that is not the ‘only’ way to protect society, like you said. We still have to do something about the dangerous criminals, who show no desire to reform, who exist now.

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  30. Luc Hansen (4,573 comments) says:

    reid

    You must live in a privileged world, as I do, just by being white. But I have many personal anecdotes I could recount here from people I have worked with that attest to the truth of what I said. Racism is alive and well in the police, even amongst those of a non- white ancestry. To believe otherwise is just naivety.

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  31. Luc Hansen (4,573 comments) says:

    Mr Elbow

    No-one seriously suggests those who are dangerous and who show no desire for reform should not be locked up.

    But over half our prison muster comprises those who committed non-violent offenses.

    Is locking them up with the really bad bastards sensible sentencing?

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