By Kate MAcKay

Where there are people, there is crime. Crime is one of the few constants throughout every society in the world; it is a grim reality of grouping people together. Therefore, a significant amount of our time throughout history has been spent figuring out how to stop - or at least, reduce - crime. To date, there have been many initiatives employed. Some believe prisons to be the answer; others argue that prisons should be abolished altogether. Some believe that we should cut the hands off of thieves to prevent their robbing abilities; others believe that rehabilitation is the only way. In relatively recent times, some have proposed an alternate method, one that is particularly reminiscent of a childhood classroom - a method known as three strikes laws.

What are three strikes laws?

Three strikes laws are a name given to a broad set of policies that aim to reduce, or even stop, reoffending altogether. Just like the name suggests, these laws give an offender a ‘strike’ for each qualifying offence they commit, and if they get a second or third strike, they face a lengthy sentence of imprisonment, often without parole. New Zealand took inspiration from overseas versions of this strategy, and our own version was passed into law in 2010 by way of the Sentencing and Parole Reform Act.

This Act set out a list of forty qualifying offences that, if committed, earn an offender a strike. These offences are described as being “serious violent offence[s]”, which include murder, kidnapping, robbery and various sexual offences. It also specifies what a judge is to do at each stage of the strike system. Essentially, the first two strikes are warnings, with the second strike meaning a full sentence must be served - i.e., without parole. A third strike (or  second strike in the case of murder) means that an offender must be sentenced to the maximum term of imprisonment available without parole - unless doing so would be manifestly unjust. These strikes remain on an offender’s record for life.

Why was the Act introduced?

The Act was introduced for the purposes of “improv[ing] public safety” and “increas[ing] confidence in the justice system”. It aims to do this by “imprisoning the worst repeat violent and sexual offenders” if they reoffend, and by “making certain offenders ineligible for parole.” This reasoning purports that if the penalties for ‘repeat violent and sexual offenders’ are higher, then this will deter them from repeating their crimes and therefore reduce reoffending rates.

Pros

Upon first glance, it would seem as though the Act does indeed make sense. For most of us, the fear of punishment is enough to stop us from living life like it was “The Purge”, let alone punishment that would see us spending the rest of our lives in a cell. If an offender is to have little regard for their victim/s, perhaps they might have some regard to the long, bleak future behind metal bars that lays ahead of them. In addition, for victims, it can be incredibly cathartic to know that offenders are in prison where they can no longer pose a physical risk to the public.

Cons

In saying this, the Act, much like other ‘tough on crime’ measures, is good on paper but fails to work in practice. This is for several reasons.

First, it is an ‘ambulance at the bottom of the cliff’ approach. Rather than targeting would-be offenders before they commit the crime, they are targeting offenders after the crime has already been committed. This fails to address the root causes of crime - poverty, inequality, and cultural disconnection, to name a few - and instead works on the presumption that the only reason crime is committed is because of a “disregard for the law and contempt for society”. As put by AUT law professor Warren Brookbanks, “if the fact of the existence of the criminal justice system itself is incapable of deterring most offending, why do we now think that a warning-based model like ‘three strikes’ will be any more effective as a deterrent?”

What’s more is the impact that this law has on Māori, who represent 45% of those receiving first strikes and 55% of those receiving their second strikes despite being only 16.5% of the general population. While there are no specific statistics for recent years, as of 2018, all four offenders who had received their third strike were Māori. This law disproportionately affects Māori, and is targeting them more than the “worst of the worst” offenders that the Act wishes to focus on. Aside from the obvious implications of such an effect, there are many flow-on consequences of this which include, but are not limited to, further undermining Māori trust in the justice system, and affecting their communities. Aptly put by criminologist Todd R. Clear, “when a critical mass of a community is incarcerated, it can undermine families, businesses and social organisations, placing the entire community at greater risk of further incarceration and social collapse.”

Not only is the Act targeting Māori disproportionately more than its intended offenders, but it isn’t even really targeting them at all. While crime is seldom justifiable, many of the crimes that have earned offenders first strike warnings have not quite matched up to the ‘serious and violent’ profile. An entirely accidental assault and a kiss on the cheek have both earned strikes, with the latter earning a third strike and the maximum seven years imprisonment without parole.

Moreover, the Act has been ruled to breach the right against disproportionately severe treatment, as provided for in the New Zealand Bill of Rights Act 1990, and goes against one of the fundamental principles of our criminal justice system, which is to ensure that punishment is proportionate to offending. In addition, the fear of the Act’s impact on victims of domestic violence, who could face lengthy sentences and lifelong strikes on their record for defending themselves against their abusers, should not be taken lightly.

Its future

The Act was set to be repealed by the current Labour government in 2018, but it was blocked in doing so by its coalition partner, NZ First. However, with Labour looking set to govern alone for its next term, its repeal is likely in the near future.

In its place, Labour is promising to break the reoffending cycle by tackling the root causes of crime instead. If successful in their aims, this reform would aid in preventing offenders from getting to a stage where they commit serious violent crimes in the first place. The money put towards implementing the Act could be diverted towards rehabilitative and prevention programmes, such as early intervention and problem-solving courts, with mental health and drug courts as examples. These would assist those who stand to benefit much more from the state’s helping hand, rather than its slamming iron fist.

Conclusion

Three strikes laws, like New Zealand’s Sentencing and Parole Reform Act, have merit in theory. However, in reality they are fundamentally flawed policies that stand to further harm and excessively punish offenders in a way that is both unproven and costly on multiple levels. They disproportionately affect Māori and further harm prospects of rehabilitation. They employ a ‘tough on crime’ approach that has little evidential backing and has failed to stop the widespread offending of those who commit crimes primarily because of poor social outcomes. They violate fundamental principles and rights of our criminal justice system and end up punishing offenders that the Act was not intended for. If the Act were to be repealed, focus could instead be placed on preventing crime in the first place, by addressing the severe social issues and inequities present in New Zealand society that are significant drivers behind crime. Crime is an issue, and one that everyone wants to address. However, this needs to be done through methods that are proven to work and address crime before it starts. Only then that we can begin to reduce the prevalence of habitual criminal offending.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information. 

Featured image source: Unsplash