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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