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 .
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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.