Garrett condemns ‘manifestly unjust’, others condemn 3 strikes

In a guest post at Kiwiblog the person largely behind the three strikes legislation, David Garrett, condemns the way the legislation has been used in practice – Guest Post: David Garrett on manifestly unjust

The “unless it is manifestly unjust” out clause was insisted on by National as its price for agreeing to support the 3S law in the first place – without that, we would not have a 3S law at all. That notwithstanding, I now feel something of a dupe for recommending to the ACT caucus that we agree to it.

It was intended to be something that was very rarely used; we never envisaged it being applied in every case  of murder – all eight of them – which have now  come before the court as a second or third strike.

I spoke at every stage of  3S  passing through parliament, and numerous times during the Committee of the Whole stage.  The issue of the “disproportionality” of 3S sentences was raised numerous times by the Labour Party; it was raised and responded to  so often I wondered if they were simpletons.

I made it clear that disproportionality was the whole point of the 3S regime; it was intended  that consequences get exponentially worse for repeat offenders.  At no stage did any of the National Party speakers on the  Bill  suggest that “…or grossly disproportionate” ought to be explicitly added to, or implicitly understood to be included in, the “manifestly unjust” proviso.

The Judges of the Court of Appeal have  not only thwarted the clear will of parliament, but have inserted words into a definition that are not there, and were never intended to be there. In my view, this is nothing less than a constitutional outrage, and if it were occurring regarding a law passed by a government of  the left, there would be loud protests in the street.

Our constitution is very clear: the laws are made on one side of Molesworth Street, in parliament, and ultimately applied on the other side of the street in the Court of Appeal. Because the Judges of the Court of Appeal don’t like the 3S regime, they have rewritten it. That is nothing short of a disgrace.

Is it that the Judges of the Court of Appeal ‘don’t like the 3S regime, or that they don’t like it when use of three strikes is manifestly unjust?

I have seen in sentence appeal judgments that judges go to great lengths to ensure sentences are similar in like crimes with like criminals.

Perhaps the 3 strikes law is too prescriptive and doesn’t take into account the many factors that determine sentences.

Greg Newbold at Newstalk ZB: Three strike rule unfair – expert

Canterbury University professor Greg Newbold says when the law was introduced it was thought this provision would be used sparingly, not in every case.

“The judges are interpreting the law very liberally. The judges effectively are saying the law itself is manifestly unjust and they are refusing to apply it.”

He says judges’ refusal to apply the three strikes law proves it should never have been introduced in the first place.

“It was a ridiculous rule to start off with it. It made no sense, it’s full of flaws, it’s completely inconsistent with the principles of justice.”

Meanwhile National promises to bring back three strikes and reverse any bail or sentencing changes

National says it will reinstate the three-strikes rule if it gets into power and reverse any changes the Government makes to bail or sentencing laws.

National’s justice spokesman Mark Mitchell said today that if his party was in Government in 2020 it would reverse the repeal of the three-strikes regime.

It would also reverse any changes to sentencing and bail laws “which will see more serious, violent offenders on the street”.

And in social media National MPs and supporters are trying to blame Little and the Government in advance for any crime committed by someone on bail or released from prison on parole.

It looks like crime and punishment will continue to be a populist political football.

ODT: Law changes a risk and challenge

The rapid rise in prison numbers follows 30 years of public policy-making and the public calling for tougher sentences, which Mr Little believes has criminalised behaviour.

One of the major challenges is to change public attitudes, saying what has been happening for 30 years in criminal justice reform is not working. Violent offending is increasing.

Fortunately, Mr Little is proving to be one of the more successful ministers in the Labour-led Government and he will not be bowed by the criticism already coming his way from many angles.

However, the minister needs to allay public concerns when it comes to easing bail laws and sentencing options. Law and order always features highly on any poll of public concerns, despite being part of a society based on fairness and equality.

No-one wants sexual offenders and murderers running around their suburbs and that is the issue Mr Little will have to address. It will only take one serious crime by someone on home detention or on bail for his opponents to start howling at the moon.

Denials the Government is going soft on crime will sound empty at that time.

Little is going to manage any changes carefully. There will always be horrific crimes committed that could have been prevented if criminals and alleged criminals remained locked up. And there will always be people prepared to use crime and punishment as a political weapon.