Here we may see what Men for Stealth and Robbing must endure ...

A peripheral group of political zealots want to introduce the UK's approach to punishing burglary into NZ. Except they don't really want to do that at all.

It seems a bit odd to be devoting a post to a policy proposal coming from a party with just 0.5% support in the opinion polls - a bit like taking seriously United Future's crowing over the victory it has just won by way of the Game Sustainability Council. ("The what?", I hear you ask ... thus bearing out my point.)

But when the party in question is ACT, a sort of atavistic reflex kicks in amongst us liberal intelligentsia types, and we really can't help ourselves. So here's ACT's new "three strikes" proposal for burglars for you to look at if you want to - essentially it says that anyone over 18 who gets a third burglary conviction has to go to jail for at least three years - before I give you my criticisms of it.

Let's start with the obligatory "I've been a victim too!" story. Having your place broken into and your stuff taken really sucks. It's happened to me twice, and while neither were particularly "serious" criminal events in that the value of the property taken was minor, the damage to my place was minimal, and I was not left feeling overly insecure in my home, I didn't particularly like it happening. So I'm not going to say that burglary "doesn't really matter that much."

But going from that starting position to saying that ACT's proposed response to the crime of burglary is a good idea requires a leap I'm not prepared to make. In fact, I think that the way ACT has sold it's "solution" is quite duplicitous.

First of all, while any burglary is bad and so on, some perspective is in order. The 52,247 burglaries that were reported to the NZ Police last year sound like a big deal. But when you consider that this is some 7,300 fewer offences than were reported just two years ago - a fall of some 12.3% - it is not as if we are heading up the face of a mountain with no peak in sight. In fact, the problem already is getting smaller.

Nevertheless, ACT has made a great deal of noise about how its policy proposal is based on a UK model that has worked wonders to drop burglary rates precipitiously.

As in New Zealand, burglary  [in the UK] was out of control and given a low priority by the police and the courts. A Labour government passed a three strikes law whereby a third conviction for burglaries earned a mandatory three years in prison.

Burglary in England has fallen by 35 percent.

"Wow!", you might think. "A 35 percent drop represents a massive decline in offending! This must prove that this policy is the right one to adopt!"

Until you realise that, according to this Guardian report, total reported crime in the UK has fallen by 38% since 2002 without the widespread use of "mandatory minimum" sentencing policies. (Yes, I know those aren't the same time periods, but I can't find anything that exactly matches ... and I think it's enough to make us question the simple causal claims that ACT are making (or, at least, heavily implying) between mandatory-minimum sentences and the drop in burglary offending.)

And in the meantime, burglaries here in New Zealand also have declined by 29.9% since 1999 - and by an-almost-identical-to-the-UK 33.7% since 1998. So any claim that this policy represents a magic bullet to fix an out-of-control problem ought to be taken with a large grain of salt, at the least.

Furthermore, ACT's proposed policy reflects the UK model in the same way that all those Hollywood movies are "based on a true story". Yes, it is true that back in 1999 the then-Labour Government brought in a policy under which third-time burglars of domestic premises face a mandatory-minimum three year jail term. However, that's about it in terms of similarities between the two policies.

(Before I describe the differences, a quick word for anyone who thinks that because Tony Blair's Labour Government adopted a weaker version of what ACT proposes, the NZ Labour Party now somehow ought to back ACT's quite different policy. That is just silly talk. And that is all.)

The UK version of the policy allows for the standard rules on release from prison - meaning that people sentenced to the three year term usually are out "on licence" after 18 months. ACT's version allows for no parole at all. You serve the full three years irrespective of how you behave while in prison, or any steps you may take to rehabilitate yourself, or the like. Then you are released back into the community with no oversight of or controls over your behaviour, or requirements to undertake any integrative steps whatsoever. You will, however, have had a good long education in how to become a better criminal. What could go wrong?

The UK version of the policy allows a judge to give a sentence less than 3 years if either of the following circumstances apply:

(a)   The defendant pleads guilty – in that case the minimum sentence can be discounted to 80% of 3 years (about 2 years 5 months)

(b)   There are particular circumstances (relating to the offence or the defendant) that make it unjust to impose a 3-year sentence in all the circumstances – in that case, the Judge can impose any sentence.

ACT's version has no discount for guilty pleas (take a second to think what incentives that sets up for defendants facing their third burglary charge and ask how that might impact on the court dockets!). And it only would allow a judge to give out a sentence of less than three years if it would be "manifestly unjust" to apply the mandatory minimum. Whether that stronger phrasing will make a difference in practice is a moot point, but the architects of this proposal seem to think it ought to.

Finally, the UK version of the policy only applies to domestic burglaries - those of a person's home. ACT's version deliberately applies to all kinds of burglaries. And over on Public Address, Graeme Edgeler has pointed out just how widely this offence applies; meaning that it's not just your archetypal smashes-a-bedroom-window-and-steals-your-TV offender who will be targetted by the policy.

So any claim that ACT is "just proposing what the UK has done for 15 years" needs, once again, to be taken with more than a grain of salt. Their's is a quite different policy that applies in a quite different way.

There is then a number of other aspects to ACT's proposal worth noting. The "third strike" may have to come after an offender turns 18, but any previous "strikes" (in terms of burglary convictions) obtained prior to a person's 18th birthday count. The "third strike" may have to come after the law is passed, but any "strikes" (in terms of burglary convictions) obtained prior to the law's passage count. Meaning that under ACT's proposed law a person convicted 10 years ago of two burglaries as a 14 year old would face a mandatory three year term of imprisonment for climbing over a scrap metal dealer's wall and taking a car battery.

Of course, whether that would actually happen is then a moot point. In the UK, the Tory press frequently complains that burglars (including repeat burglars) are not being jailed often or long enough. That's because judges, confronted with the actual human beings who are committing these crimes, tend to see things in more nuanced terms than one-line political slogans and find loopholes in the law to take account of that. So any confident prediction about how the law "will" apply needs to be discounted on that account.

And anyway, any sort of sober analysis of this announcement is probably wasted. It's primary point is to try and get a headline; "ACT will get tough on burglars!" Whether the proposal will do any good, or whether it will really do anything at all, is then a bit beside the point.

Which is kind of fitting, delivered as it was by an academic philosopher .