Guest Post: Three strikes 2.0 – What changes are needed?

A guest post by David Garrett:

I was pleased to see that both National and ACT have pledged to reinstate the highly effective three strikes (3S) law. What concerns me is that rather than recognizing the “manifestly unjust” proviso as needing clarification, for some odd reason ACT’s coalition agreement with the Nats provides that the definition of a strike offence needs clarifying. God only knows where they came up with that idea – one of the features of the New Zealand  version of the law which differentiates it  from the Californian version is that there is absolutely no ambiguity regarding what is and is not a strike.

To avoid the injustices which unquestionably  arose from the ambiguity of the law in California – where relatively minor offences could become “technical felonies” and thus strike offences –  I determined from the beginning that there must be no such ambiguity here, so what became s.86A of the 3S law listed all of the strike offences. They are all offences of serious violence attracting a maximum sentence of seven years or more. If it’s not on the list, it cannot be a strike. Not ever. So as I say I cannot see how whoever drafted ACT’s agreement can have thought the definition needs “clarifying”. Perhaps they mean they need to add certain offences – such as burglary – to the list. The Act was deliberately  so drafted that no other changes would be required other than the addition of a new offence.

ACT has pushed for making burglary a strike offence – something I absolutely agree with. But they have also suggested that a separate 3S law covering burglary is necessary – it isn’t, unless they propose something different from the exponential three stage regime the orginal law provided for. 

  Back in 2010, we said the purpose of the law was two-fold: to deter those who were capable of deterrence, and for those unwilling or unable to change their violent behavior, to keep them away from the rest of us for as long as possible. In the 12 years the law was in force, there were about 13,000 first strikers, 650 second strikers and 25 third strikers.  Those figures provide  an excellent example of what is called “specific deterrence”, i.e. deterrence of a certain group or class of people, in this case strike offenders. This is different from “general deterrence” which means – for example – that the prospect of prison is supposed to be a deterrent for the rest of us.

What is more important than raw numbers  is a comparison of strike offending for a period – let’s say ten years – prior to the law coming into effect vs. the ten years after. For reasons best known to themselves, Justice officials were always very reluctant to keep stats on strike offending – I personally believe they were afraid of their fixed ideological  position – that it would not work – being disproved. To be fair, the National governments after 2010 were also not keen on closely monitoring the effects of the law or keeping reliable and informative stats.

Opinions on the change in striker numbers pre and post 3S are various; some commentators have said there was close to a 40% reduction in second and third striker offending after June 2010 when the law came into force  as compared to the previous ten years. In a briefing paper to the Select Committee considering the Bill repealing 3S, Justice noted rather grudgingly that there was “a statistically significant reduction” in such offending. If anyone  has some better numbers than that most unsatisfactory statement, please let us know in the comments.

So much for deterrence. What we do  know is that over 650 offenders – the second and third strikers –  spent longer in jail that they would otherwise have absent 3S. That was the second limb of 3S in action: incarcerating for longer periods those who would not or could not modify their behavior than hitherto.  Of the 25 odd third strikers virtually none of them – including none  of  the murderers – faced the full force of the law as parliament intended to be the case. Instead in all cases, it was determined that it would be “manifestly unjust” for them to be imprisoned for the maximum period prescribed for the offence in question.  In short, the “manifestly unjust” proviso – insisted on by National – was re-written by the judges of the Court of Appeal.

The manifestly unjust proviso

The “manifestly unjust” proviso (the proviso) in the 3S law was lifted word for word from s.102 of the Sentencing Act, which deals with sentencing for murder. For clarity, the relevant section reads as follows: 

102 Presumption in favour of life imprisonment for murder

(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.

Section 102 (1) allows a judge in appropriate cases  to depart from the presumption of life imprisonment for murder and instead impose a lesser sentence – in theory at least, the sentence need not even be imprisonment. 

In the 21 years the Sentencing Act has been in force I am only aware of a handful of cases in which the proviso has been used to avoid a life sentence for murder. While I stand to be corrected, I believe that all of those handful of cases have been where one elderly spouse kills his or her terminally ill mate at the latter’s request, or where there is a murder-suicide pact that is only partially successful in that only one spouse dies.

While some will disagree, in my view the application of the proviso in such rare and unusual cases is entirely justified in a just and compassionate society. But here’s the rub: when the 3S law was passed, everyone commenting on the proviso assumed that it would be applied exactly as it was in s.102 (1) – i.e. only in very rare and unusual cases.

One Law Society worthy, now a DCJ, wrote an impassioned piece for the Law Journal lamenting the fact that the proviso was an inadequate guarantee against injustice. He clearly thought – as I and Judith Collins and everyone else did – that third strikers being given the benefit of the proviso would only happen very rarely, and certainly not in every single case of murder.

So how does Parliament now ensure that the judges follow the new  law? To be quite honest, I don’t know if that is even possible. Perhaps the new law could include a specific section spelling out the meaning of the proviso: e.g. “this sub-section shall only be available to a convicted prisoner in the rarest and most unusual of cases”. Perhaps a better approach would be to include a sub-section which said “this proviso is to be applied in exactly the same manner, and using the same criteria, as it is applied in s.102 (1) of this Act”.

Would either or both of those additions ensure that judges applying 3S 2.0 did what parliament intended? Frankly I have my doubts. The original proviso was clear enough – but activist judges rewrote it. If they could do that, they could rewrite the proviso in the new legislation now matter how carefully it is worded. Several commenters here have suggested that we need a “clean out” of activist judges. While such an outcome would certainly be desirable, it is simply not going to happen – our system of judicial appointments  does not allow it. Perhaps all we can do is be more choosey regarded who is appointed as a judge. They should all  be people who fully recognise that under our system parliament is sovereign, and their job is to apply the law, not rewrite it as they think it should be.