March 10, 2010 10:28am by David Farrar

Three Strikes arguments

The proposed three strikes bill would be grossly unjust and could result in an 11,000 per cent rise in time spent in prisons, an independent organisation on crime says.

This is a subtle form of bias. Calling an organisation “independent” is a positive brand which suggests expertise and neutrality. In reality the organisation quoted is a lobby group like the Sensible Sentencing Trust.

He pointed to the case of Leandro Andrade who, under the three strikes legislation in California, was sentenced to two 25-year sentences for stealing children’s videos worth US$153.54 ($219.58) from two Kmart stores. They were his third and fourth strikes; his first two were home burglaries committed in 1983.

A nonsense example as neither theft nor (non aggravated) burglary qualify as a strike offence under the proposed New Zealand law.

Commits two relatively minor offences (street robbery, for example), then a more serious offence (aggravated robbery) but a minor case. Instead of five years, they get 14. No parole.

The robber would have been warned after both the first and the second strike that a third strike will get a maximum sentence. They then make a deliberate decision to not only continue robbing people, but to do so using a weapon.

I think there will be a lot less people robbed after the third strike.

Commits two different offences (indecent assault, wounding with intent) then is negligent resulting in a death (or drinks and drives, killing someone) and gets life without parole.

It is not automatic that drink driving causing death will result in a manslaughter charge. In fact I would say normally it does not, and under this law Crown Law would have to agree to the third strike charge.

Offender commits a minor offence (wounding with intent in a pub brawl), then murder (self-defence, provocation or mercy killing) and gets life without parole.

I love how wounding with intent is called a minor offence. It is “… wounds, maims, disfigures, or causes grievous bodily harm to any person.” Frankly having someone disfigure you or cause you grievous bodily harm is not a minor offence – that is why it counts as a strike.

Secondly self defence is not murder.

Thirdly if you have a strike for wounding with intent, you should not murder someone if provoked.

Fourthly the mercy killing is so improbable. The sort of people who put their dying spouse or parent out of their misery do not tend to have criminal records, and in the hugely unlikely chance they did, the Judge does have some discretion to not impose the full strike penalty.

Consider Bruce Emery’s manslaughter conviction for chasing and stabbing a tagger. If he’d had two previous convictions from when he was younger and had reformed, he’d get life imprisonment.

The law is not retrospective. Any earlier offending by Emery would not count unless done after this law had been passed. Emery would have to have committed two serious violent or sexual offences, and would know he is on a third strike. That might well have persuaded him not to run after a tagger with a knife, and may have saved the taggers life.

Also I suspect Emery would have far less public support for what he did, if it transpired he did have a criminal record with at least two previous serious violent or sexual offences.

Two brothers kill their mother in a mercy killing because she has a terrible disease. One has no previous convictions and is paroled after a few years. The other has a previous strike and gets life with no parole.

The opponents of the law always go to the mercy killings, despite the miniscule number we have. Again it is very rare that people who put relatives out of their misery have criminal records, and there is some judicial discretion against a manifestly unjust sentence.

But more to the point, the brothers, if they are not morons, would agree that the brother with a previous conviction should not be involved, as he would face a longer sentence.