Targetting repeat offenders makes sense, but the three strikes bill has fundamental flaws that undermine our judiciary and make us less safe. That's right, less safe
A couple of years ago my teenage niece asked,"why do we call it a life sentence when people aren't in prison for the rest of their lives?" She was struggling to get her head around our criminal justice system. Sadly, many New Zealanders are in the same boat, and so there's limited understanding of the substantial changes contained in the government's three strikes bill.
The fact is that, despite the common cry, 'why doesn't life mean life in this country?', it already does. A life sentence means your freedom will be curtailed by the state until the day you die.
When, for example, Mark Lundy got a life sentence with a 20 year non-parole term for murder, many hear the "20 year" reference think that's how long he'll serve. But few violent offenders (I don't know of any murderers) are released after their first visit to the parole board, and some stay in far longer than their minimum terms.
I was told last year that of the 420-odd people currently in prison on a life sentence, something like 40 will never be released. Even now there are retirees in our prisons for crimes committed long ago.
Once someone sentenced to life is released, they remain on parole. Even an 80 year-old given a life sentence 50 years earlier will need permission to move home, change jobs, go on vacation... I've never seen this explained by those who campaign for tougher sentences; that detail always gets left out.
The best thing that can be said about the three strikes bill is that it's better and fairer than the version produced last year. You might add that the focus on recidivism is also appropriate as the stats show that the more you offend, the more you're likely to re-offend. For example, 62 percent of first-time offenders aged under 20 will be back in prison within five years; with recidivists it's 88 percent. It's the same in every age bracket, right through to the over-40s, where the comparison is 12 percent for first-timers and 50 percent for recidivists.
On that basis, it's reasonable to argue longer sentences – and therefore greater deterrence – for recidivists. (It's also reasonable to argue for better programmes in prison, but that's a different post). But is three strikes the way? There's good reason to conclude that it's not.
There's been plenty written about it's inherent unfairness (for example, if you commit assault-assault-murder in that order you get a longer sentence than if you commit murder-assault-assault), the safety of prison guards and the fact the bill would have failed to stop some terrible loss of life. But for me there are three main reasons for the three strikes bill to be struck out; three profound and worrying changes to our criminal justice system.
First, it fundamentally changes what 'life' means. It goes from a 'life sentence', as described above, to meaning life in prison for those on their third strike. Those are two very different things. Isn't it ironic that ACT, the party that reputedly stands for individual freedom, has won the greatest extension of state power over individual liberty that I can remember?
Second, through this bill represents quite a power grab by the government at the expense of judges. Again, ACT is making government bigger, contrary to its core ethos. Where judges could weigh the facts of an individual case, a specific life, and sentence an offender accordingly, now, they have been reduced to rubber stamps. They have no discretion on a third strike sentence, no discretion on parole for a second or third strike offender. In constitutional terms, the executive wing of our government has lessened the independence of the judicial wing, which is seldom good law.
Finally, the bill limits the use of parole. On a second strike an offender serves his or her full term and then is released, unsupervised; on a third it's 'throw away the key' time. That's just dumb. Research shows that those released on parole are half as likely to re-offend as those who serve their full term. So well done Mr Garrett et al, you've just made us less safe. Your need to look tough means that those recidivists released after their second strike are now more likely to commit a third.
Any one of those points should be enough to force this bill to be reconsidered, or at least should be used to humble the government as the bill passes through parliament. It's bad law and makes a mockery of this government's commitment to evidence-based policy. Sadly, Labour lacks the courage to fight this corner, so it will be left to the Greens and the Maori Party to act as opposition.
For a short time, the public desire for revenge will be sated; until the next high profile murder. Then a mob will again demand that politicians 'do something', some politicians' knees will jerk in a quest to win the votes of the angry, and this cycle will start all over again.