A "three strikes and you're out" sentencing law has been introduced to Parliament by the National Party as part of Act's agreement to support the Government. While National reserves judgment on whether it will back the legislation any further, the Prime Minister has gone so far as to dismiss an estimate that the policy would cost more than $30 billion over 25 years. Clearly, John Key does not want any insinuation that his party is not tough on crime. Equally, however, he should recognise that the three-strikes approach contains too many fish-hooks. Any doubts about its shortcomings have effectively been removed by Chris Finlayson, the Attorney-General.
Mr Finlayson has reported an "apparent inconsistency" between the three-strikes legislation and the protection offered by the New Zealand Bill of Rights Act against cruel, degrading or "disproportionately severe" punishment. Three strikes would see those convicted of a third serious offence of a violent or sexual nature sentenced to mandatory life imprisonment with a minimum non-parole period of 25 years. The Attorney-General is concerned with the inconsistencies this would promote, such as "the imposition of a life sentence for offences that would otherwise be subject to a penalty of as little as five years". Judges would, effectively, have to choose between a sentence of less than five years or a life sentence. Their right to a large degree of discretion would be severely circumscribed.
At its most inequitable, this could lead to vastly different punishments for two people equally culpable for the same crime. One, having activated a third strike, could get life imprisonment; his partner could be free within five years. This is, of course, intentional. The third-strike penalty says, in effect, that the offender is beyond rehabilitation. Nothing in that process is rational. Nor do the inequities end there. As Mr Finlayson notes, there is no differentiation between
those who accumulated two strikes in the distant past and those who commit three crimes in quick succession without gaining convictions that would make them eligible for the three-strikes penalty.
More fundamentally, the approach is flawed in imagining that putting criminals away for much longer periods will improve the crime rate. It does not. New Zealand has already gone a long way down that track during the past decade. The number behind bars has risen significantly and new prisons have had to be built, but this has had no impact on the offending rate. As much as Mr Key may contest the exact cost of a three-strikes approach, it will demand yet more new prisons.
National has its own ideas. These include denying any opportunity for parole for anyone convicted of murder who had previously received a prison sentence of five years or more for violence. It also proposes no parole for those convicted a second time of any violent offence attracting a sentence of more than five years. In the first instance, life would mean life for the likes of RSA triple-killer William Bell. But the second part merely postpones release while removing any incentive for rehabilitation. That creates obvious problems of attitude when freedom is finally granted.
The Attorney-General's finding on the three-strikes approach are not necessarily its death knell. But it and the policy's basic flaws should prompt its rejection by a parliamentary select committee. National, for its part, needs to fine-tune its policy. Like the former Labour Government, it is struggling to find the right balance between punishing criminals, safeguarding society from those who present too great a risk and providing rehabilitation carrots. It needs to get the formula right. Violent crime has become too serious a problem to be captive to political posturing.