Analysis: The Government is bringing back Three Strikes legislation but questions remain over its effectiveness in preventing serious crime, writes Q+A presenter Jack Tame.
Among the Government’s new list of priorities released this week was a return of the controversial Three Strikes legislation.
First introduced in 2010 during the John Key years and then scrapped by the previous government, the Three Strikes law works by progressively punishing repeat offenders with mandatory longer sentences.
A first strike conviction for a serious crime receives a normal sentence and a warning. A second strike receives a sentence with no parole, and a third strike results in a maximum sentence without parole.
According to the National’s election policy documents, the purpose of the Three Strikes law is two-fold: the law ensures serious criminals are behind bars for longer, and the prospect of mandatory sentences acts as a deterrent from future crimes.
In New Zealand, very few offenders find themselves behind bars for life. Even serious offenders serving maximum sentences are eventually released from prison and back into the public.
Locking criminals up for longer might delay their reintegration, but with high recidivism rates it’s hardly a cure-all in keeping the community safe.
The second purpose of Three Strikes – deterrence - is arguably more flawed.
Deterrence assumes violent criminals act rationally. It assumes people with a history of serious offending are carefully stepping through the consequences of their future actions and weighing up increasingly severe sentences that further offending would bring.
The deterrence psychology works well enough for low-level infringements.
For example, international research suggests demerit point systems are effective in shaping safer driving behaviour. Drivers who have had points deducted are more likely to drive safely afterwards.
But Ministry of Justice research from when Three Strikes was last in place says there’s no evidence in New Zealand to suggest the law makes repeat offenders think twice.
“There is no distinct indication that the Three Strikes legislation is deterring individuals from committing qualifying offences,” it said.
International research referenced in the same report provided a “mixed picture” at best.
Many of those who commit qualifying crimes have mental disorders or significant addiction issues which further impede their decision-making.
Deterrence for impulsive crimes?
The 40 offences covered by the previous iteration of Three Strikes are all of a serious or violent nature.
As the National and ACT parties point out, fewer than 30 people were convicted of a third strike offence during the period the law was in place, despite the average Three Strikes offender having 75 previous convictions.
The parties say this proves Three Strikes is an effective deterrence, but it’s worth noting the law couldn’t be retroactively applied to count offences which took place before June 2010. Therefore, it took time for offenders to actually rack up qualifying offences.
Indeed, there were no third strike convictions for several years after the law first came into effect. As time passed, however, Ministry of Justice data shows the number of final warnings and third strike convictions began to increase.
This government is not alone in pushing questionable deterrence policies.
Ahead of last year’s election, with polls suggesting voters were particularly concerned about law and order, Labour promised to make the filming of ram-raids for social media an aggravating factor in criminal sentencing.
But at the same time, then-Children’s Minister Kelvin Davis acknowledged most of the people actually committing the crimes were not thinking about the consequences.
The Cabinet minister spoke to Q+A following the Government's anti-crime policy blitz earlier this week. (Source: 1News)
“You're introducing a law as a deterrence for criminals whom you say are impulsive?” I asked him on Q+A.
“Yes. Correct,” the Minister replied.
Three Strikes has the potential to result in sentences which most New Zealanders would consider unjust.
In an often cited case from when the law was previously in place, a mentally ill man was sentenced to seven years in prison after being convicted of forcibly trying to kiss a stranger. The Supreme Court ultimately overturned the sentence, describing it as one which “shocks the conscience”.
But at a more basic level, if the purpose of Three Strikes is to stop serious crime, deterrence has to work. And while as a policy it might appeal to law-abiding voters, there’s good reason to think it’s ultimately less effective in practice.
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