Tuesday, 25 January 2011

Three Strikes Law at Work

Inherently Just

We have had our own New Zealand version of the "Three Strikes" law on our statute books for six months. The Police and Corrections Minister, Judith Collins reports that 132 offenders have been sentenced under this new law in that time.

We are very supportive of the NZ version of the "three strikes" approach to sentencing. It will no doubt require some tweaks from time to time. But we believe that this is something we have got basically right. It is a carefully graduated statute, avoiding the unpalatable injustices of "three strikes" laws when they were originally introduced overseas.
The Sentencing and Parole Reform Act imposes a graduated scale of harsher penalties for repeat criminals who are convicted of one of 40 violent or sexual offences. An offender receives a normal sentence and a warning for strike one, a sentence without parole for strike two, and the maximum sentence for that offence, without parole, for strike three.

There will be plenty of people in the "commentariate" who will continue to question this law. Is it working? Are criminals being deterred? No doubt every time someone reaches "strike three" and gets the maximum non-parole sentence it will be an occasion to opine that the law is "not working". This is because New Zealand, like most Western countries, remains paralyzed in a hopeless confusion over crime and punishment. Given that all Western countries to a greater or lesser extent believe that government has a redemptive function and responsibility, the existence of even one criminal and the commission of just one crime would be seen as a failure of the state and of society. In such a world-view, punishment for crime is not an option. That is why in New Zealand, our prison system is called the "Department of Corrections", underscoring its conception as a redemptive, saving institution.

Thus, the "three strikes" law will always be assessed as to whether it is believed to be effective in reducing crime. But this is a nonsense. Not only is it grounded in a false ideology, but how would you ever tell? No doubt criminologists and "commentariate" members will routinely trot out things such as "Our research tells us that 'three strikes' has not worked to reduce crime in New Zealand," in the future.

But the very pronouncement conveys the folly of such spurious research. No doubt the causes of crime are manifold, various, and complex. No doubt they also change over time. Unless research can screen out all the multi-variate factors and test "three strikes" as an isolated factor, the research will be worthless. But, it will get done, and it will be published, and it will be used to argue that "three strikes" has failed. How do we know this?

One reason is ideological: the very suggestion of "punishment" with respect to crime is an offense to those who believe in the redemptive powers of the state--and that is the vast majority in our country. "Three strikes" will gnaw at the ideological vitals of the body politic. The second reason such spurious research will be done and will be employed is because such shonky research is done all the time. Multi-variate causes are ignored routinely in much "social science" statistical research because they prevent hard conclusions being drawn, which, in turn, precludes headlines, which in its turn makes it more difficult to get funding--and so on. Multi-variate causes make conclusions die the death of a thousand qualifications, so things "work better" if they are just ignored, being quietly put to the side.

We have no interest in whether "three strikes" laws reduce crime. The reason, however, we believe "three strikes" is the right approach is because of the inherent justice involved. If two people are in the dock, one convicted of aggravated robbery as a first offence, the second as a third offence the guilt of the repeat offender is greater; therefore the punishment must be greater. Punishment does not atone for crime. It is retributive. It deals out what the criminal deserves. Restitution atones--making up and good, restoring the victim. Punishment does not. Therefore, for successive crimes the guilt of former crimes continues and is heaped up.

"Three strikes" sentencing policies are inherently just. Whether they reduce crime or not is irrelevant.

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