Lack of evidence on effectiveness of 3 strikes law

Minister of Justice Andrew Little wanted to scrap the contentious 3 strikes law but had to ditch plans when NZ First said they would not support ditching it.

Families Commissioner Len Cook has a say on Evidence and the ‘Three Strikes’ law

The ‘Three Strikes’ law exists because a majority of Members of Parliament want it, although there is no evidence which exists to justify or shape it.

Claiming “a majority of Members of Parliament want it” is not strictly correct. A majority of MPs voted for it in 2010, but as that was a party vote there is no way of knowing how many individual MPs supported it and how many didn’t.

Understanding how we got here might be helped here if we explore some of the ‘evidence’ used to introduce the law and explain its operation since then.

Crime generally has been falling since the 1990s, and for violent crime there was a peak around 2008/2009 and then a decline in cases taken to Court. This general fall in offending can be seen in most outcome measures including convictions. Sexual assault offending is stable and violence offences have declined since 2009.

Statistics support the claim that violent crime is falling. However there are perceptions that it is still a major problem (it is, even if reducing) – media and social media could be exaggerating the levels.

There are few cases that the three strikes law affects, and these do not provide evidence to conclude whether this particular law has had any influence on offending, especially when the introduction of the law will also have had an influence on the prosecution of cases and in sentencing judgements.

Then Minister of Justice Adams has provided an answer to a Parliamentary Question in 2017 which, despite her comments, became the basis of misleading reactions. The information given has been used by others to suggest that recidivism from serious offending has fallen by some 34 percent since the three strikes law was passed.

Quite simply, it is not realistic to assume that what happened before 2010, when the law was enacted could be the same as the period after 2010. The comparison with offenders before 2010 is simply hypothetical because the classification of people into second and third strikes did not exist then and has retrospectively been made up.

That makes it questionable.

Yet again, as occurs across our Justice system, application of a new law will be targeting Māori and Pacific offenders disproportionately rather than those committing the worst offences. Little has changed since the 1970s when one in 14 Māori boys of each birth cohort were taken into institutions by the state alongside one in 100 Pākehā boys.

Cook may be correct, but where is the evidence “a new law will be targeting Māori and Pacific offenders disproportionately”.  Ironicially:

Deliberation now on offending needs to be founded on knowledge rather than ignorance of our recent history in criminal justice.

While the arguments for the law link it to the need for proper redress for victims, we simply do not know whether there is a connection. The existence of the three strikes law may delude our Parliamentarians into believing that providing redress for victims is this manner best reflects their interests. For this we have no evidence.

Graeme Edgeler had a go at evidence last year – Three Strikes five years on! Now with accurate numbers!

I now have this data, following contact by the Ministry of Justice after my retraction (and Nikki Macdonald’s excellent work in the Dominion Post) was published, and the Ministry apologised for falling short of the high standard they set for themselves, and offered to provide comparable data if I still wanted it.

The comparison between the years before and after the coming into force is less stark, but there remains a reduction in strike recidivism beyond that in strike crime generally. The extent to which this fall can be attributed to three strikes remains anyone’s guess.

So with a lack of evidence and many guesses the effectiveness of the 3 strikes law remains highly debatable. And the law remains in place thanks to NZ First’s deciding voting power.

Public opinion is not a measure of effectiveness but of perception. Recently Sensible Sentencing did a poll and asked:

Since 2010, New Zealand has had a ‘Three Strikes’ sentencing law for serious violent and sexual offenders who continue to commit offences. This law removes parole eligibility for repeat offenders and imposes the maximum prison term available for the offence committed, for those who offend a third or subsequent time. Do you approve or disapprove of this law?

  • Approve 68%
  • Disapprove 20%
  • Unsure/refuse 13%

The poll was conducted by Curia Market Research in late February and early March and was based on the responses of 965 respondents. The poll has a margin of error of +/- 3.2 per cent.

This seems like strong support, but that is a loaded question – pre-loaded with “serious violent and sexual offenders who continue to commit offences”.

All third strike sentences so far have not imposed the maximum term as they have been ruled ‘manifestly unjust’ because the third strike convictions were relatively not serious.

Judges usually go to great lengths, especially at appeal level, to impose appropriate sentences based on many factors, including:

  • the seriousness of the crime
  • aggravating and mitigating factors
  • criminal history
  • whether the crime was premeditated or not
  • whether there has been a guilty plea
  • whether there is any noticeable remorse
  • need for deterrence
  • whether treatment has been undertaken for mental health or addiction problems
  • signs of rehabilitation
  • compared to similar crimes

For an example of the lengths judges go to in reconsidering sentences see a recent appeal SOLICITOR GENERAL v HUTCHISON [2018] NZCA 162 [12 June 2018]

Leave a comment

16 Comments

  1. Chuck Bird

     /  June 27, 2018

    Pete, have you read the histories of the second strikers? They cannot rape old ladies while they are behind bars. I believe in rehabilitation where possible. These evil people will pose a danger until they are very old and even then some of them could still be a danger.

    Reply
    • There’s some very bad single strikers and non-strikers too that the public need to be protected from.

      Reply
      • Gezza

         /  June 27, 2018

        Changes to sentencing & bail laws didn’t just come about as a result of a few high profile appalling bail decisions & sentencing disasters that cost lives. People were fed up with seeing the pages long rap sheets of violent thugs & murderers released who shouldn’t have been, sure, but they were also fed up with folk with being robbed, burgled, bashed, tagged, intimidated, car stolen or broken into – you name it – over and over again – by perps who kept getting released on community sentences or short lags by judges who were progressively getting more & more lenient using other lax sentences as precedents in the face of high probability of more offending.

        So lets just have Mr Little give some specifics about the kinds of cases he considers low level offenders. Unbelievable the tosser still hasn’t come out with any, let alone a dozen depersonalised representative cases, or any actual stats.

        And let’s have Davis & Little be absolutely clear about what funding & services & resources they’re putting in place for mental health/addiction treatment, diversion, rehabilitation, literacy, employment, supervision, prisoner support before they waffle on any further with bland slogans.

        Reply
  2. Chuck Bird

     /  June 27, 2018

    Do you think this evil individual will ever be low risk?

    Child-murderer Anthony Roma back in prison after alleged parole breach

    https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12078178

    Reply
    • Blazer

       /  June 27, 2018

      you can not contain all evil by6 legislation Chuck…face facts.The ‘hang em high’ emotive rationale is badly flawed and ineffective.

      Reply
      • Chuck Bird

         /  June 27, 2018

        You can contain a lot of them. Which these evil criminals would you like living next door?

        Reply
        • Blazer

           /  June 27, 2018

          just avoid leafy suburbs and you will avoid the worst …criminals.

          Reply
          • Kitty Catkin

             /  June 27, 2018

            I imagine that not many people in the UK would want the killers of James Bulger living next door, or the Ipswich man who stalked and killed the prostitutes, or Harold Shipman or….

            Reply
  3. Trevors_Elbow

     /  June 27, 2018

    Little should be encouraged to follow his convictions on this matter… and then bear the consequences when something inevitably happens involving a scumbag, who would have remained in jail under 3 strikes, is out on the street and destroys someones life.

    Again – IF people like Little and others want these scum out, have them released to managed parole facilities that are situated in the affluent suburbs where our Judges, QC’s, senior civil servants and pollies live. You deal with them I don’t want them around my family or friends in the working class suburb I live in….

    Reply
  4. unitedtribes2

     /  June 27, 2018

    I know a guy quite well who has made every effort to be in jail. Most the time the State’s efforts to keep him out have won. It seems to me that when this guy eventually convinces the State they should put him up then thats were he will need to be. You got a be a really bad bastard to go to Jail. If you can do this three times well you need to be there for a very long time.

    Reply
    • PartisanZ

       /  June 27, 2018

      Garbage in begets garbage out …

      A single anecdotal example makes neither evidence nor edict …

      I know good people who went to jail for almost no reason compared to others who received community service sentences … or who have compulsive addictions that warrant treatment and for which prison is the worst possible outcome …

      Reply
      • Gezza

         /  June 27, 2018

        How many, for what offences (ALMOST no reason?) & what do you know of their previous offending history?

        Reply
  5. NOEL

     /  June 27, 2018

    If the question had been “is the 3S effective” and honesty was the driver ,I’m guessing the majority would vote “I’m not sure”

    Reply
  6. Zedd

     /  June 27, 2018

    ‘3 strikes’ is again just blindly following USA ‘tough on crime’ rhetoric (esp. for maori & the poor).. surely Judges dont need to be told how to ‘pass sentence’, all they need to know is the law. Then it is their call on how it is administered. Judges already have the power to pass a ‘life sentence’ if the crime is deserving of it

    Again I point to those saying ALL ‘class A drug offenders’ should be remanded in custody, pending trial, even for drug use. Its called ‘overkill’ !

    Also ‘If one is wealthy & can afford a good lawyer (QC ?) then one will likely get off.. with a just stern warning anyway.. ‘ eh what

    Reply
  1. Lack of evidence on effectiveness of 3 strikes law — Your NZ – NZ Conservative Coalition

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