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]