Editorial: Three-strikes law deserves death sentence

4:00 AM Friday Jan 22, 2010

It is no consolation that the Government's new proposed three-strikes law for dealing with violent offenders is an improvement on the original legislation. Gone is the mandatory 25-year sentence on the third offence, which was bound to spawn examples of disproportionately severe punishment.

But that aside, there is nothing to suggest this is a balanced or coherent approach. Rather, it smacks of politicking designed to appease people seeking an easy solution to violent crime.

The new policy will apply to 36 violent and sexual offences with a maximum penalty of seven years or more. A first breach of one of these would result in a standard sentence.

The second would mean a prison term with no parole. Conviction for a third offence would force the judge to impose the maximum penalty in prison for that offence with no parole.

Only if a judge felt a non-parole or maximum sentence was "manifestly unjust" could such penalties be avoided on the second and third strikes.

Therein lies the first major shortcoming of the legislation. Once again, Parliament has seen fit to relieve judges of their sentencing discretion. Act Party leader Rodney Hide has gone so far as to suggest that the "manifestly unjust" clause should be exercised only in "pretty extreme" cases.

Such intrusiveness is most unfortunate. Justice should not focus solely on punishment.

In each case, judges should have the chance to bring a more balanced perspective. It should be up to them to decide whether a criminal is too great a risk to society and, therefore, deserves the severest punishment, or if a rehabilitation incentive is warranted.

It is reasonable to assume that in the case of criminals guilty of a third strike, judges would almost always opt for the maximum penalty.

As criminologist Greg Newbold has pointed out, the proposed law also retains fertile ground for huge inconsistencies in sentencing. An offender who committed two assaults and a murder - in that order - would be imprisoned for life.

But someone who committed murder and then two assaults would serve only the maximum penalty for assault, a sentence length that would vary depending on the attack and certainly not mean a life behind bars. Again, the absence of judicial discretion removes an obvious avenue for addressing such anomalies.

The legislation is not retrospective, which means it will not come into play for the best part of 10 to 15 years. But the fact that it encompasses as many as 36 violent and sexual offences means the extent of the impact should not be underestimated.

There is the potential for a significant increase in the prison population. That points to the most fundamental weakness of this approach.

Imprisonment not the most effective way of reducing recidivism, and building prisons is not the best use of taxpayer dollars.

This has been reinforced by a two-year inquiry by a cross-party group of British MPs. Its report, released last week, says the billions of pounds being employed to build jails would be better spent on rehabilitation and crime prevention.

It advocates capping the prison population and putting resources into local education, health, drug, alcohol and community programmes that would be more effective in cutting crime. Continuing with a business-as-usual set-up is not an option, the group concludes.

Britain is building more prisons in response to popular pressure for more and longer jail sentences. New Zealand Government policy is being driven by the same misguided impulse.

The three-strikes legislation appeals only to those who crave a magic bullet in what is a matter of complexity. It should be sentenced to death long before the time any judge is forced to apply it.