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The slow bite of NZ’s three strikes law

  • April 30th, 2013

David Garrett acheived what I did not in his time in Parliament. He got the three strikes law through. Finally it is starting to bite.

As an MP I promoted a "three strikes and its the max" law change, but not single-mindedly. I spent more time pushing for speed and certainty in criminal justice, because of the research that shows it is more important than severity of sentence, in deterring crime (and consoling victims). So I welcomed David's success, but predicted that we might not replicate the US outcome. I feared (and still fear) that we could get the worst of all possible outcomes – longer sentences with more crime. From my research we are likely to suffer from our national propensity to look for costless solutions, to pull our punches in an attempt to be nice to criminals in the hope that they will be nicer back.

Three strikes in  the US was (and is) hated by 'liberals' because of its disproportionality. Some of that may also have been the (unintended) secret of astonishing early success.I mention the US experience briefly here and here and here

California pioneered with a three strikes qualification based on ‘felonies’. Felony has a technical definition so some can be trivial in fact. Naturally there were some hugely controversial sentences of 25 years for minor third offences.

Three strikes was the result of a citizen vote in California. It must be preceded by an objective independent evaluation report to the people. I tracked down a Rand Corp researcher who worked on the evaluation. He was against the change, and continued to think it was too severe. But he thought it had 'worked', albeit at excessive cost. He theorized that the California experience (nearly 40% drop in serious crime over 18 months)  was attributable to the uproar over the early disproportionate consequences after the law change. Criminals learnt quickly of  the inexorability of the three strikes imprisonment for the third strike.

"There could not have been an offender who did not know a new sheriff had come to town”.  Before then many criminologists had the view that offenders did not have enough self control to respond to risks and knowledge of consequences.

The intent of the California change was simple, and very different from ours. In essence it was a constitutional way to implement preventive detention. Research revealed that 20% of offenders were committing 80% of serious crime. Almost all who were convicted for 3 felonies went on to commit more, usually shortly after release from the previous sentence. They  commonly ceased to offend by age 45. So three strikes was promoted as a simple way to keep the irredeemable recidivists in prison until they were around 45. Most of that category had their third felony no later than their early 20s, so the 25 year sentence was designed for them.

Research suggested that most of the serious recidivists would be locked up for 25 years within 4 years of the law change. In fact the serious crime rate plummeted much more quickly, for reasons that were never conclusively identified. The theory mentioned above – about the effect of saturation TV debate over a 25 year sentence for demanding a pizza with threats (robbery) and for stealing motel towels (I can’t remember why that counted as felony – there must have been some technical extra factor, perhaps pushing over the maid and running after being caught doing it) – may be the best explanation.

Our law on the other hand is much more in line with our timid approach to mandatory sentencing.

I thought there could be little reasonable objection to the proposition that when you have committed two [not three – thanks Graeme] previous serious violent offences, with warnings of what is coming,  your third [not fourth]  is a declaration of contempt for the law and for previous mercy in sentencing and parole. I can’t understand people who object to the maximum prescribed sentence for an offence which is committed with contempt for the law, for the victims and for the court's previous warnings.

Look for detail of our law here .




i>I thought there could be little reasonable objection to the proposition that when you have committed three previous serious violent offences, with warnings of what is coming, your fourth should be deemed to be straightforward declaration of contempt for the law and for previous mercy in sentencing and parole.

I don’t believe four strikes and you’re out was an option that was put to us.

I can’t understand people who then object to the next drawing the maximum sentence.

For many, it’s the cost.

For me, I do not consider that all convictions that will count as strikes will actually be “serious violent offences”.

A 7th former shaking down 3rd and 4th formers for their lunch money is committing robbery. Two 7th formers, and it’s aggravated robbery.

A drunken grope at a party is a an indecent assault, and in a few months time, the following scenario will constitute an aggravated robbery:

Person A is a drug dealer, selling marijuana joints. They operate on a street corner, and to avoid being seen sell their drugs from behind the fence of an closed car yard. Their accomplice, person B, takes the money, but never touches the drugs. When you pay person B $40, they yell out to person A, “two” and you put your hand through the fence, and person A gives you two joints.

Police see this, and after you leave the scene, stop you, say they have reasonable suspicion that you are in possession of drugs and search you. They find the two joints, and a screwdriver.

I probably don’t need to tell you what can count as a manslaughter (improper supervision of a mechanic has been enough in NZ). If someone has a couple of indecent assault convictions from their late teens/ early 20s, and 35 years later gets done for this sort of manslaughter, I want the judge to have the option of something short of a life sentence with 10 years non-parole.

I’m not saying these are at all likely to be charged in this way (although the drunken grope one clearly happens), but they do make me aware of the possibility that “serious violent crime” occasionally isn’t all that serious, or all that violent (and aggravated burglary doesn’t have to involve violence at all, given recent changes – the ANZAC Plougshares protestors were charged with burglary, but given what they used to deflate the spy dome, could easily have been charged with aggravated burglary), and I like there being sentencing discretion to recognise this.


The case in the papers at the moment has some-one with 78 previous convictions. Undoubtedly, he hasn’t been sentenced for all of his criminal acts.

He is 22 years old. If he goes away for 14 years next time around, we would need to compare the cost of him committing another 78 crimes every few years. Perhaps he’ll get cleverer about not getting caught.

The cost (mental and physical to victims and the courts and the police time tracking him down time and time again probably works out more than the 2 million dollar price tag trotted out for keeping him locked away.

Seems fair enough. He still has a choice on how he behaves when he gets back out.

  • Mike Mckee
  • April 30th, 2013
  • 8:58 pm

Unfair going to prison for a little crime.
In my experience the little crime wasn’t so little to the victims I’ve talked too.

It’s common sense, they know they are breaking the law, behaving like shits.
Now they have a painful consequence, a brick wall in their future.

I think it should apply to all crime committed in the categories, not just violent.

Why did this get passed.
Because the electorate has/had lost faith in the judiciary, no one appears to be addressing that. to me that aren’t visiting it at all.
Guys on $300k a year losing the confidence of the populace.

Justice seems to be a lottery biased towards the rich and priveledged like ex and present AB’s 🙂 and soft on repeat offenders.

repeat, soft on repeat offenders.
I look forward to the 20% getting to their 3rd strike soon and if we have to build a extra prison on the North and South Islands let’s get them built asap.

  • peterquixote
  • May 1st, 2013
  • 7:16 pm

Stephen Franks . What you achieved in parliament and as a person was long lasting credibility.
That is a fact.
David Garrett’s work is incredible and his intellect goes on, but the world is hard.
I am determined to see a NZ Nat Govt back in 2014, but I have yet to convince Winston Peters NZ that we should not devalue $NZ. But I will.
See the old jokers like me, do you want to devalue your currency superannuants ,., answer here Mr Winston. I am going to kick you face into a coalition with NZ Nat or have a major show down.
Don’t believe us Winston, this is your last chance, and you know it

  • sean14
  • May 1st, 2013
  • 8:42 pm

Sorry Graeme, how does your drug-dealing scenario constitute an aggravated robbery? Do you mean aggravated burglary? If so, I think you draw a long bow. While the screwdriver could be used as a weapon it also has a legitimate purpose.


sean14 – yes, I meant aggravated burglary.

I agree it is unlikely to be charged that way. I use the example as one to show that it is not necessarily the case that all strike offences are either sexual crimes, or crimes involving violence (much less serious violence).

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