Criminal Law

Three strikes and out

The Sentencing and Parole Reform Act 2010 came into force on 1 June 2010. The media refers to it as the ‘Three-strikes’ legislation and what it does is introducing a three-stage regime of increasing consequences for the worst repeat violent offenders.

1. When an offender receives a sentence of five years or more (a qualifying sentence) for a serious violent offence he or she is given a first warning.

 2. When an offender who has been given a first warning receives a qualifying sentence for a subsequent serious violent offence he or she is given a final warning.

3. When an offender who was given a final warning commits another serious violent offence for which the court would have imposed a qualifying sentence, the court must instead impose a maximum sentence without the possibility of parole. If the offender commits murder at stage 2 or 3, the Court must impose life imprisonment without parole.

The Bill came under a lot of scrutiny and criticism. The Law Society claims that it will lead to more injustice by removing the possibility to tailor the punishment to the wrong committed. Amnesty International NZ argues along the same lines – the Bill removes discretion of sentencing from the judiciary and the mandatory imposition of a maximum sentence without allowing consideration of particular circumstances breaches  s9 of NZ Bill of Rights Act (“disproportionate severe punishment”).

What seems to be mostly overlooked is the fact that the Act allows the Court to deviate from the mandatory maximum non-parole sentence at the third stage if “given the circumstances of the offence and the offender, it would be manifestly unjust” to do so.  This not only allows the Court to consider whether the sentence meets the crime – it arguably also allows the Court to apply the normal guiding principles of the Sentencing Act, which seems to go a long way to alleviate the concerns raised by AI.

What is surprising is that no one seems to have bothered researching whether such laws do work in other countries. California introduced a very similar three-strike law in 1994 and twenty four other US states have adopted similar offender laws.

From the limited research I have done it seems to be unclear whether these laws did bring down the crime rate.  There also seems to be evidence that offenders on their last strike are more desperate and therefore more likely to kill or offend violently (again). Of course, this behaviour does not reveal whether they were already more violently prior to their third offending or whether the law “made” them become that way. Cynics might say that the law actually creates the criminals it wanted to deter in the first place.

The three-strikes law in the US is especially problematic as it counts petty thefts, such as shoplifting, as felonies and also allows for multiple strikes when multiples charges are committed. That means someone can be charged with ‘two strikes’ when he commits an offence twice in one incident (steals two chocolate bars, assaults two people at the same time). This has lead to outrageous convictions ( 26 years to life for the crime of stealing  four chocolate chip cookies with previous strikes of burglary and assault with a deadly weapon), but in 2003 the US Supreme Court held that such convictions are constitutional and are not  “cruel and unusual punishment”. This should not surprise coming from a country which has also taken a very liberal approach to the definition of ‘torture’ when it justifies their means.

The Californian Three Strikes Act  also allows Judges to not impose a life sentence if that is considered unjust:

“Under the law, prosecutors and judges are able to review three strike cases in order to determine if imposing the mandatory minimum sentence would undermine the “furtherance of justice”. When this occurs, a third striker is sentenced as a second striker, resulting in a doubled sentence instead of the minimum sentence of 25 years to life. Consequently, this exercise of discretion by prosecutors and judges prevents undeserving offenders from being sentenced too harshly.”*

It looks like that in the US, three-strike laws are there to stay. Whether it works in New Zealand, whether we will see a reduction in crime, who knows. Fact is that the list of crimes covered under the new Act in NZ  comprises only the most serious violent offences, so cases like the life-for-shoplifting one above can not be repeated here.



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