NZ judges reject confines of three strike straightjacket

With much publicity, and no doubt some embarrassment, Justice Minister Andrew Little was forced last month to abandon his plan to repeal New Zealand’s controversial three strikes law when he failed to get the votes he needed from New Zealand First. Repeal might still take place as part of larger criminal justice reforms, but for now, three strikes remains good law in the Land of the Long White Cloud.

Recidivist offender laws are nothing new. Laws that increased penalties for repeat offenders can be traced back to 16th century England and colonial America. In New Zealand, laws of this kind are more than 100 years old: the Habitual Criminals Act 1906 authorised the indefinite detention of offenders with two or more qualifying crimes. After decades of disuse, three strikes legislation has been rediscovered, reinvigorated, and redeployed in the past 25 years.

New Zealand judges face an enormous task. In determining an appropriate sentence, judges must weigh the totality of the evidence and impose criminal sentences that serve multiple purposes, particularly:

Deterrence: Offenders who are punished are less likely to reoffend, and their punishment will deter others.

Incapacitation: Punishment can make it difficult or impossible for offenders to reoffend.

Rehabilitation: If crime occurs because of a defect (psychological, moral, social, etc.), it can be corrected to prevent future crime.

Retribution: Criminals should be punished because they deserve it, regardless of prospective consequences.

The underlying logic of three strikes legislation is that failures in deterrence can be compensated via increases in incapacitation. That is a lawyerly way of saying that if an offender does not learn his lesson after being punished and goes on to reoffend – and in New Zealand approximately 49 percent of those coming out of prison will return within four years – then the second punishment should be greater. If the offender does not learn from the second punishment, then the third should be greater still.

Although incremental sentencing conceals underlying jurisprudential puzzles (e.g., exactly how does increasing penalties on the basis of previous convictions not violate the Bill of Rights Act’s prohibition against double jeopardy?), it is a practical, sensible logic, especially since research suggests a small fraction of the population is responsible for a disproportionate volume of crime.

The New Zealand three strikes law, enacted in 2010, was modelled upon California’s 1994 three strikes law. The California law, created in response to a couple of high-profile murders of young women, had a number of unusually draconian provisions and was denounced as “the toughest law in America”.

In 2003, for example, at least 360 people were serving life sentences for shoplifting. By casting a wide net, with many qualifying offences, imposing very long sentences (25 years to life for each third strike) with no real mechanisms for sentence reductions – no diversion and restricted good time – three strikes helped to expand the California prison population.

In 2011, California’s prisons were so crowded that “an inmate in one of California’s prisons needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system”. California was ordered to reduce its prison population by 46,000 people within two years.

However, instead of releasing non-violent offenders, state officials simply transferring low-risk prisoners from state prisons (where they were counted in the statistics) into local jails and private prisons (where they were not). A year later, third strikes became limited to serious or violent felonies to prevent cases such as the defendant sentenced to 25 years for stealing a slice of pizza.

Some researchers report three strikes laws produce significant reductions in crime, but others concluded the impact on crime is modest, even counterproductive.

It is hard to estimate the effects of the New Zealand three strikes law. Like the California law, the New Zealand law imposes escalating sentences at the first, second, and third strike. Like the California law, the first non-murder strike in New Zealand is nominal and does not affect the sentence imposed. However, unlike the California law, which doubles the usual sentence at strike two, the New Zealand law simply requires the offender to serve the entire sentence without parole.

And whereas the California law imposes a mandatory 25-to-life sentence for each third-strike offence, regardless of the crime committed, the New Zealand law simply imposes the maximum penalty authorised by law – allowing the judge to impose a lesser sentence only if the failure to do so would result in “manifest injustice”. This manifest-injustice provision operates as a safety valve that is not available in California, where judges, Pilate-like, were forced to impose sentences they knew to be wrong. Thus, the New Zealand three-strikes scheme is less rigid and less punitive than the California law.

This has obvious advantages: it reduces the risk of egregious miscarriages of justice and slows (relatively) the expansion of the prison population, but it also reduces the certainty of punishment at strikes two and three, undermining its value as a deterrent. And because the longest prison sentence available under the New Zealand law is the statutory maximum (without parole) – not 25 years to life – the incapacitative effects of the law are limited.

California’s three strikes law disparately impacts minorities. In 2013, African Americans constituted only 6.6 percent of the state population, 28 percent of the prison population, but 33.5 percent of all second strike and 45.7 percent of all third strike California prisoners. On the other hand, non-Hispanic whites made up 39.4 percent of the state population but only 24.1 percent of strikers.

In New Zealand, there is good news and bad news. The good news is the ethnic composition of strikers is roughly equivalent to the ethnic composition of prisoners. Given that three strikes is intended to incapacitate incorrigibles, the worst-of-the-worst, the striker population should look like prison population. This is the silver lining on a storm cloud. The bad news is the ethnic composition of New Zealand prisons is grossly distorted. While Māori constituted about 14.6 percent of the New Zealand population in 2013, they made up 50.3 percent of the prison population and 47.6 percent of the striker population. Pasifika constituted 6.9 percent of the New Zealand population, but 11.7 percent of prisoners and 15.2 percent of strikers.

A recent poll conducted by victims-rights group, the Sensible Sentencing Trust, found robust support for the New Zealand three strikes law: of the 965 adults polled, 68 percent approved of the law, 20 percent disapproved, and 12 percent were unsure or declined to answer. But judges hate the law. Criminologists hate the law.

One size-fits-all-punishment is both wasteful and expensive: $100,000 NZD per year of incarceration. It discourages judges – who already have the ability to ensure public safety under existing sentencing laws, including preventive detention – from applying the full spectrum of sentencing considerations.

In the first third strike case to reach New Zealand’s courts, Justice Kit Toogood echoed the sentiments of other judges, from other jurisdictions, who in the past have been constrained by bad laws. He told the defendant: “Parliament has determined that your history of violent offending requires a very stern response to protect the public from you and to act as a deterrent to you and others. It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it.”

To avoid imposing a seven-year sentence for pinching a correctional officer on the bottom, Justice Toogood, invoked the manifest injustice provision of the three strikes law and determined that Raven Ramsey Campbell may seek parole after serving one third of his sentence.

Indeed, it is telling that no New Zealand judge has sentenced a defendant to serve a third strike maximum sentence without parole. This fact suggests an autonomous, independent judiciary that prizes individualised justice. Straitjacketing judges with presumptive sentences will not work, especially if judges resent the underlying jurisprudence of three strikes and possess a legal mechanism (e.g., manifest injustice) to blunt the full force of the law in cases where they do not believe it is warranted.

In his 2013 article about three-strikes, Rolling Stone reporter Matt Taibbi lamented, “Like wars, forest fires and bad marriages, really stupid laws are much easier to begin than they are to end.” It is an observation with which Justice Minister Andrew Little likely agrees.

Associate Professor of Criminology James Oleson is from the School of Social Sciences at the University of Auckland.

This article reflects the opinion of the author and not the views of the University of Auckland.

Reproduced with permission from Newsroom, NZ judges reject confines of three-strike straightjacket published on 13 July 2018.