Guest Post: Is three strikes “silly”?

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Before and after his abortive attempt to repeal the (3S) law, Andrew Little’s only comment on it was and remains that it is “silly”, and “the high water mark of policy stupidity”. To the best of my knowledge, he has never actually explained what is “silly” about it, or explained why he thinks it is “stupid”. Perhaps he thinks  the voters are stupid, and will just take his word for it? So, do his  officials agree with him? It would seem not.
 
In a report on 3S released in December last year, Justice Department officials said inter alia  “the existing evidence is mixed and more robust research is needed to understand the true effects of these laws” and “Research in this area appears to be prone to political bias.” Aint that the truth.  However buried in the report is this:
 
“…in comparison with second strikeable offences committed before the law came into effect there has been a drop in the number of second strike offences since the laws implementation.”
 
That statement clearly states that specific deterrence is occurring. Leaving aside for a moment that deterrence was never seen as the primary purpose of 3S this is a crucial admission. Although Winston  Peters has never spelled out what he means when he says “it  [3S] doesn’t work, does it?”, the context suggests that he means there is no discernible deterrent effect. He cannot mean that 3S is not dramatically increasing the length of sentence for both third and to some extent second strikers, because that is clearly occurring. I doubt he means that it “doesn’t work” because the judges of the Court of Appeal have deliberately misinterpreted its meaning, and the judges of the High Court have enthusiastically taken their cue from our highest court.
 
It is important to record that a  key reason for 3S being promoted as a reform proposal was widespread public outrage at serious violent or sexual offenders repeatedly getting parole and going on to commit more serious crimes. Three strikes makes a huge difference to that progression, as parole is not available at 2nd strike stage, and maximum terms are imposed upon racking up  a 3rd or subsequent strike.   Opponents of Three Strikes, like Peters, claim it doesn’t work.  That is patently false. Three Strikes works in two distinct  and quite different ways: those it can deter, it deters.  Those it can’t deter, it incapacitates for longer periods. Simple. Blunt. Effective.
 
While some of  my colleagues in Sensible Sentencing are unhappy with the report, I  look beyond the subtly biased language throughout it and see the nuance. An example of subtly biased language is that 3S is estimated to cost “over $2.7 million” without giving any context at all to that figure. In a Corrections  budget of over a $1 billion, 80% of which is spent on staffing and maintaining prisons,  $2.7 million is literally a drop in the bucket.
 
Put more accurately, the cost of 3S in terms of prisoner beds is miniscule, and there is no impact at all on staff numbers; strikers are treated exactly the same as any other sentenced prisoner. So what is the fiscal impact of 3S? There are now about 380 second strikers, and 9 third strikers. The second  strikers are serving whatever the judge gave them without parole, so those 380 odd effectively  take up an extra  prison bed only  for the period between when they would normally be paroled and the end of their judge imposed sentence.
 
The nine third strikers, who (aside from the murderers) are serving the maximum sentence for their crime, are for accommodation purposes at least in the same category: they are taking up a bed for the period between which they would have otherwise been released and the end of their sentence. This already miniscule impact is of course lessened still further by the fact that in every single case of third strike murder, the judges have magically found it would be “manifestly unjust” for these inevitably brutal killers not to be eligible for parole. However the third strike numbers are so small that whether they are paroled or not makes no practical difference to costs.
 
The Justice Department report includes a useful graph showing offending pre and post 3S in three categories of crime: sexual assault; Robbery/aggravated robbery; and “serious assault”. I was struck by how similar the shape of the  graph is for the same post-3S period in California, with sexual assault being the only category which appears to remain totally unaffected by the law change. I am not a psychologist, but I suspect this is because sexual offending is driven by very hard wired primal urges; if one is sexually aroused by young children, or by the power “buzz” of abducting and raping women, deterrence is very difficult if not impossible to achieve. It is notable that the first third striker – the so called “bottom pincher” – was convicted of indecent assault on a prison officer while he was serving his second strike offence. (The so called “bottom pinch” was much more serious than that, while still admittedly being a low level indecent assault). The crucial point is that the offender had so little control of himself that he was unable to resist his sexual urges towards a prison officer, while in prison. He is in fact just the kind of offender 3S aims to keep locked up for long periods, and I am very happy that he is in jail for up to seven years.
 
It is also fair to say – as the report does – that few changes are “easily attributable” to the new law. While there has been a sharp decline in serious assault since the law came into effect in June 2010, it is fair to concede that this decline began prior to June 2010.   There has also been a steady decline in the robbery/aggravated burglary category, but again arguably this decline began before June 2010.
 
As the report readily concedes, the almost complete lack of any research makes it very difficult to tell whether the continuing decline in the latter two categories of serious offending  is related to 3S or not. I suspect that this government will never commission any such research for the very simple reason that they are totally uninterested in whether the law is effective as a deterrent or not. It does not fit the Labour/Green ideological beliefs – encapsulated by Kim Workman’s ludicrous claim that “prison is not full of bad people; it is full of good people who have done bad things.” That is demonstrably false – those “good people” in prison have an average of 46 convictions – but that is a whole different discussion.
 
Greg Newbold tells me that prisoners are very well aware of both the existence and impact on them of 3S, and this accords with my own very limited experience of talking to “strike” offenders. What impact does the judges’ refusal to properly apply the law have on reoffending? Who knows, no research has been done. Once one accepts, as both Newbold and I do, that prisoners are not all morons who cannot understand cause and effect, it is logical to assume that the judges’ re-writing of the law has had at least some blunting effect on the impact of the law.
 
As I said earlier in this piece – and as I said many times in the House – the primary purpose of the law is protection of the public from violent offenders who will not change their behavior. As long as it survives, the law will ensure that there are no more offenders who are able to rack up dozens of convictions for serious violence on members of the public – they will be in jail, and unable to hurt Joe and Jane Citizen. Certainly they will be a risk to their fellow inmates, but them’s the breaks. Prisoners can avoid becoming victims of their fellows by not going to jail in the first place; prison officers choose  to work with what the Corrections Department euphemistically calls “some of our most challenging citizens.”
 
So, is three strikes “silly” as Little claims? Not according to his own officials it isn’t, although some solid research is required to show just what its impact is. The law is safe – for now – because the members of the New Zealand First caucus refused to back Peters on repeal of it. Hopefully the next National government will commission the research that is clearly sorely needed. Perhaps such research might even convince the 48% of Green voters who, in a Curia poll, supported the law.
 

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