Penalties And Recidivist Offending

Implicitly Just

As we have mentioned before in these pages, New Zealand has a Three Strikes Law.  It is definitely better crafted than Three Strikes legislation in our countries--in our view.  One better aspect is that a list of offences has been stipulated which qualify as Three Strike offences.  The intent is to restrict Three Strikes risk and liability to serious criminal offences only.  

We have recently had our first Third Strike offence and judgement issued.  This has prompted discussion about how effective our Three Strikes legislation is, and how just it may be.  In fact it was an interesting test case, attracting some controversy.  As is so often the case in such matters, the media are busy parroting the views of judges who feel that their god-like discretion has been unduly removed.  What is not being reiterated by said opinionistas is that the public had grown progressively annoyed at judges handing down sentences way less than the maxima allowed for serial criminal offenders--leading to a demand for Three Strikes laws.

In the first place, the offence that brought this particular Three Strikes liability and its resultant sentence was one which seemed minor, at first glance.  A criminal in prison under his Second Strike offence thought it would be cute to grope the rear of a female prison guard, which in New Zealand law constitutes an indecent assault and which has a maximum jail term of seven years.


Secondly, the sentencing judge expressed regret that his hands were tied and he had no choice but to impose the maximum sentence.

An editorial was full of righteous indignation when it condemned the Three Strikes law and used this case as proof of its manifest injustice.

A man who groped a prison guard's bottom has been sentenced to seven years in prison.  This absurd situation has come about because of a harsh and misguided piece of legislation – the "three-strikes" law passed in 2010.

The law says that anyone who commits three crimes from a long list of 40 must be sentenced to the maximum possible penalty for the final offence.  Raven Casey Campbell is the first person to reach a third strike. His offence was plainly an indecent assault – and one that caused distress and humiliation to his victim. Yet equally plainly, it was far less serious than many crimes that bear the same name, and entirely undeserving of a seven-year jail term.  [Stuff]

The Three Strikes law is responsible for an absurd situation.  What is clear, however, is that the critics hold a rather extremist view of justice and judgement.  They are apparently persuaded that each offence must be treated and sentenced in abstract isolation.  So, to put the matter in clear light, for sake of argument, the critics imply that if a person is on trial for his third murder, the fact that he has been sentenced and done time for the first two murders ought have no bearing at all on the severity of the sentence for the third murder.

The critics do not believe that recidivism should--in itself--carry greater guilt and criminal liability.  Yet no-one functions like this in any other area of human life and interaction.  Consider the employer who has to upbraid an employee who turns up an hour late to work.  Modern employment law mandates that a series of warnings and disciplinary actions must occur--and then, if the employee does not change or correct his behaviour, after a number of disciplinary interventions, he can be dismissed.  In other words it is normal practice in ordinary life for guilt and blame to accumulate if misbehaviour becomes habitual.  It is not acceptable for the employee to argue, "Look, the first time I was an hour late.  This time I am only forty-five minutes late.  You are acting unjustly because my breach of conduct was smaller this time than the first time."  Everybody understands why this is not acceptable.  Measures of discipline for unacceptable behaviour are justly increased when the misbehaviour is repeated.

But when it comes to criminal and, in particular, habitual, criminal behaviour somehow this no longer applies.  The patent injustice of this approach which views all crimes as only and ever to be "first offences" has led to the Three Strikes legislation being passed in the first place.  The fact that so many justices were failing to take this fundamental principle of justice into account when sentencing has made a Three Strikes law necessary.

Most serious criminal offences carry a minimum and maximum sentence.  The sad reality is that few justices ever apply the maximum sentence allowable under law.  That failure has led to our Three Strikes regime.  Justices that object to their "hands being tied" by Three Strikes sentencing rules ought to take a good, long hard look in the mirror, as well as their colleagues.

That is not to say the Three Strikes law cannot be refined, improved and reformed.  But, then again, that is true of all legislation.  No precept or penalty is perfect.

The "three strikes" law invites harsh sentences because it includes so many offences, some of which, like those against discharging firearms, are comparatively minor, and most of which cover crimes that can vary widely in their seriousness.  The law's drafters understood and ignored this. Their original bill applied the three strikes on the basis of the actual sentences imposed by judges, not the offences – a fairer approach. But that was ditched, with the result that unjust punishments keep emerging, and that New Zealand's prisons are expected to hold an extra 700 offenders by 2060.

On the other hand, doubtless the original bill was changed from a three strikes approach based on actual previous sentences imposed by judges to its current form because of deep scepticism over the unwillingness of a majority of judges in New Zealand to punish criminals.  Doubtless the legislators would have argued that if Three Strikes were to be based upon the severity of earlier sentences handed down to the particular criminal, it would have led to an even more perverse outcome where justices would then always opt for the minimum possible sentence in every case.

Many justices in New Zealand appear to enjoy a high self-regard to the point of viewing themselves as minor deities.  They seem to think their task is to be redemptive above all else--redeemers of the criminal, by means of tender mercies.  They have long forgotten that the first task of a judge is to rule justly, not mercifully.  In particular, they have forgotten that by the time the third serious criminal offence is committed there must be zero tolerance.  Justice requires it.  Moreover, love and regard for the victims and the wider community require it.