Guest Response On Three Strikes

January 23rd, 2011 at 1:11 pm by David Farrar

Dr Richard Ekins has done a guest post responding to the guest post by David Garrett:

David Garrett’s defence of the three strikes legislation has not improved with the passing of time.

He says:

“As some commentators at the time have noted – with some justification – indecent assault can cover a fairly broad continuum from the “drunken grope” to near rape. In my view the relative seriousness of various forms of indecent assault is a red herring – or at least a separate debate. None of the other “strike” convictions thus far can be described as “minor offences”, although others will no doubt argue otherwise.”

I was one of those ‘commentators’ (see the Guest Paper published by the Maxim Institute.

It’s nice to see Mr Garrett now conceding we had some justification for our concerns (at the time he, together with the Hon Judith Collins MP just blithely asserted that there were no relatively minor offences) but it is wildly misleading to say that the relative seriousness of indecent assault is a red herring. 58 of the first 209 strike convictions are for indecent assault. That is over a quarter of all convictions.

It is extremely likely, if this law is not repealed in the next few years, that some persons convicted of a minor indecent assault (a drunken grope, not premeditated, no serious harm to the victim, where the offender pleads guilty, is remoresful and pays compensation to the victim) will be sentenced to 7yrs in prison, without parole. That sentence is longer than is imposed on an ‘ordinary’ case of rape, if the offender pleads guilty (and the rapist is eligible for parole).

The assertion that all the other convictions, other than for indecent assault, were “pure violence” offences is also misleading. Doubtless, some, and probably many, of them involved actual infliction of violence. But one can commit robbery or even aggravated robbery without inflicting violence – threats of violence, even if minor, are enough. Obviously many robberies are extremely violent and they are all wrong. But it is just not true to suggest that all those convicted of robbery (or aggravated burglary, which one can commit by breaking into an empty warehouse with a crowbar) have commited crimes of “pure violence”.

Mr Garrett relies on his friend the District Court Registrar, who tells him “that almost without exception, they are familiar faces, having appeared before – some on many occasions – often for violent offending.” What does this tell us? 132 offenders were convicted of the 209 strike offences. There are 66 District Courts in the country. On average then, each District Court has seen 2 offenders. The fact that the 2 offenders the Registrar is likely to have seen (or, be generous and say her District Court has seen far more than any other in the country, say 8 offenders) have been before the courts doesn’t prove that these are ‘the worst of the worst’ (as Garrett reports her, some of the previous offences are for non-violent offences, and many of the violent offences may be common assault) as the legislation was said to be focused.

The main problem in principle with the three strikes law, setting aside the practical problems (it will mean there are a great many unnecessary, expensive trials, putting victims through unnecessary anguish and making it more difficult to convict offenders, many of whom now have no incentive to cooperate with prosecutors and to testify), is that it imposes arbitrary punishments. Many offenders deserve severe punishment. The three strikes law ignores nearly everything that is relevant to deciding what punishment an offender deserves (premeditation, cruelty, impact on the victim, remorse, etc…) instead requiring severe punishments to be imposed on an arbitrary, irrational basis.

It will be interesting to observe what happens as offenders notch up a second or a third strike. If those getting third strikes are repeat violent offenders, the law will remain very popular. If people do get sent away for seven years no parole for a grope, then there will be a backlash.

What will also be interesting from my perspectuve, is how Judges will use the “manifestly unjust” provisions. If they never use it (and it is a high threshold) then the chances of someone getting seven years for a grope will be increased. On the other hand it is possible Judges may use it too much, watering down the effectiveness of the law.

I suspect we are a year or two away from second strikes starting to accumulate, and we may not even get any third strikes for five years or so.

Incidentially I agreed with some (not all) of the changes proposed in the Maxim paper by Dr Ekins and Professor Brookbanks.


Maxim on Three Strikes

May 5th, 2010 at 4:00 pm by David Farrar

The Maxim Institute has a paper by Professor Warren Brookbanks and Dr Richard Ekins on the Three Strikes law. It sets out arguments against the law, the main being a third strike of a maximum sentence is not a proportionate response.

Now I disagree with them in opposing the law. I think it will e a welcome step towards stopping the idiocy that we keep letting offenders out after minimal sentences for repeated serious offending.

But Brookbanks and Ekins have also proposed some amendments to the law, which I do partially agree with, and the Government could consider at the committee of the house stage. They are:

Authorise judges not to impose the maximum sentence on strike three if this would be manifestly unjust (this amendment would bring the legislation into line with the assertions being made by the ACT Party).

At the moment the law directs a Judge to impose the maximum sentence without parole for a third strike, unless this is manifestly unjust in which case they can give the maximum sentence with parole.

So long as the threshold for “manifestly unjust” is very high (and case law suggests it would be) and not used frequently, I support this change. There may be times when a 14 year sentence for aggravated robbery, even with parole eligibility, is manifestly unjust.

Retain presumptive eligibility for parole, or if this is not done, authorise judges not to order the sentence be served without eligibility for parole on strike two if this would be manifestly unjust.

I don’t agree with this proposed change. I regard parole as generally being a failed experiment, and the certainty of no parole for a second strike is important. Possibly could live with a “manifestly unjust” exception again but I worry some members of the Judiciary would interpret that to apply to every case as they don’t agree with the law.

Modify what counts as a strike from a conviction for a qualifying offence alone to at least a custodial sentence for a qualifying offence and preferably a custodial sentence of some length, say at least two years.

This doesn’t catch enough people, and it means that if Judges keep giving light sentences for serious violent offences, the offender never comes under the three strikes regime.

Make provision for strikes to lapse over time (perhaps after ten years).

I think this can be reasonable. Maybe a bit longer period than ten years, but I have sympathy for someone who does a first and second strike at 18 and 19 and a third strike at say 55, and they automatically get the maximum sentence. One could argue this can be dealt with under manifestly unjust exceptions, but I think an incentive for a strike to lapse is a good thing.

However I would make it a condition for a strike to lapse, that the offender is crime-free for that entire period of 10+ years. Not just of serious offences, but of all offences.

Make specific provision in strike three sentencing to recognise a guilty plea, allowing judges to discount the maximum sentence by up to 25 percent, depending on when in the trial process the plea is made.

At present, an offender gets a “discount” on their sentence of 5% to 33% for an guilty plea, depending on how early they plead guilty.

There is a potential problem that there is no incentive to plead guilty to a third strike offence. Some discount for an early guilty plea could solve that problem, and not undermine the regime overall.

Authorise the courts not to impose a life sentence for murder and manslaughter if this would be manifestly unjust.

Again, so long as manifestly unjust holds a very high threshold, I could love with that.

Specify that some instances of manslaughter (most notably accidents arising out of gross negligence) do not constitute a qualifying offence.

I suspect very few people convicted of that type of manslaughter have criminal histories, and it would normally be a first strike anyway. However I think the proposed change has some merit, in differentiating between types of manslaughter.

I’m not sure if the Government is open to changes, but it would be good to hear debate on them. Maybe Opposition MPs can move them as amendments.

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