The history of the Three Strikes policy is incredibly interesting, but the history it seeks to upend is more important. Photo / Dean Purcell
The history of the Three Strikes policy is incredibly interesting, but the history it seeks to upend is more important. Photo / Dean Purcell
Opinion by Jarrod Gilbert
OPINION
This history of the Three Strikes policy is incredibly interesting, but the history it seeks to upend is more important.
With its baseball terminology, Three Strikes came out of the US, and is best known for its use in California in the 1990s. On an offender’ssecond offence, they are not eligible for parole, and on their third offence they must receive the maximum possible sentence without parole. Three strikes and you’re out.
That sounded pretty good to the people of California, who overwhelmingly endorsed it, and the state experienced a significant reduction in crime in the years after Three Strikes was introduced. This was seen as a tremendous victory for the policy. Indeed, California was held up as an example for the policy’s adoption in New Zealand.
Yet the causative link between Three Strikes and the reduction in crime in California was far from strong. The downward trend in Californian crime rates began some years before the law was enacted, and US states that didn’t have Three Strikes also enjoyed falling crime rates. In fact, New York’s crime rate fell substantially more steeply than California’s, yet New York had no such policy.
As in California, the adoption of Three Strikes in New Zealand was popular with the public, even if there was vociferous opposition among academics, the legal fraternity, and even the conservative thinktank the Maxim Group. In favour of Three Strikes was a law-and-order lobby group and the law’s key architect, Act MP David Garrett - possibly New Zealand’s angriest man - whose own criminal history would ultimately undo him.
If you think the quality of people around someone is a good reflection of character, Three Strikes hardly kept great company.
But that’s not to say Three Strikes is all bad. One thing it does do is send a strong message that the community is prioritising law and order, which has value in galvanising the population. But does it do much more than that, and at what cost?
Perhaps the highest cost comes from the fact that it runs contrary to Western democratic principles of justice. The very ideas that have not only made Western systems of justice the best in the world, but the best ever conceived.
The Age of Enlightenment dawned in Europe in the 17th and 18th centuries. It was a period that redefined the West. During this time, reason triumphed over barbarism. The fundamental transformation of ideas of justice during this period laid the foundation for what we enjoy today. One important component was the idea of proportionality. Instead of flogging, torturing, or killing people for any manner of crimes, scholars embedded the idea that the punishment should fit the crime. Three Strikes runs contrary to that. The removal of judicial discretion means that we get distortions in sentencing because crimes of the same class are seen as identical, yet we all know they are not.
Take, for example, a person who demands a small amount of money with limited menace, and a second who demands a large amount of money with great aggression. A child can see the differences between the two in terms of financial and emotional costs, but they are both still aggravated robberies. Using judicial discretion, the cases could be dealt with differently, but under Three Strikes the same sentence must be given for both.
The excesses of this form of sentencing under Three Strikes are countless, but are evident in the case of Raven Campbell, who grabbed the bum of a female prison officer in Waikeria. That is a sexual assault, but by any measure it is at the lower level of that that form of offending. Under Three Strikes he was sentenced to the maximum seven-year sentence, without parole. Few would argue that’s a proportionate response.
Waikeria Prison in Te Awamutu, where Raven Casey Campbell, 25, indecently assaulted a female guard by grabbing her buttock.
While New Zealand’s version of Three Strikes allows for judges to intervene if the sentence is manifestly unjust, one could argue - and it has been argued - that the very point of Three Strikes is to create manifestly disproportionate sentences as a way of creating maximum deterrence.
That leaves us with either a judiciary choosing to buck the Government’s intent (not good) or one that is prepared to blast through fundamental principles of our system (also not good).
Many people will say that pragmatism beats principle, but even if you lean that way, the evidence that Three Strikes makes any real difference just isn’t there. Don’t take my word for it, the Government said exactly that when re-launching the policy.
So, here we are, choosing a policy with at best a chequered history, while turning our back on a history that laid the very foundations of our criminal justice system.
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