Evidence and the ‘Three Strikes’ law

The ‘Three Strikes’ law exists because a majority of Members of Parliament want it, although there is no evidence which exists to justify or shape it. This is not an unusual situation, and there are many examples of legislation being weakly informed by evidence, or by none at all. Understanding how we got here might be helped here if we explore some of the ‘evidence’ used to introduce the law and explain its operation since then.

The overall incidence of crime is falling, and has been doing so since the 1990s, and violent crime has been falling over the past decade. There are few cases that the three strikes law affects, and these do not provide evidence to conclude whether this particular law has had any influence on offending, especially when the introduction of the law will also have had an influence on the prosecution of cases and in sentencing judgements.

Yet again, as occurs across our Justice system, application of a new law will be targeting Māori and Pacific offenders disproportionately rather than those committing the worst offences.

Then Minister of Justice Adams has provided an answer to a Parliamentary Question in 2017 which, despite her comments[1], became the basis of misleading reactions. The information given has been used by others to suggest that recidivism from serious offending has fallen by some 34 percent since the three strikes law was passed. This is because there had been 68 persons who have reached the ‘two strike’ stage between 2010 and 2015, compared to 103 people who supposedly might have done so between 2005 and 2010. The 2005-2010 figure has been arrived at in different ways than that for 2010-2015 (for example, before the legislation, compared with after the legislation passed). Quite simply, it is not realistic to assume that what happened before 2010, when the law was enacted could be the same as the period after 2010. The comparison with offenders before 2010 is simply hypothetical because the classification of people into second and third strikes did not exist then and has retrospectively been made up. Dr Warren Brookbanks[2] noted in 2015 that:

  • the application by judges of their discretion has changed and so has where they might apply that discretion
  • as almost always occurs with any law change or public outcry, the Parole Board, Crown prosecutors and Police have adapted how they exercise their own discretions in applying the law
  • the mix of crimes has changed.

Simply because two figures have been juxtaposed does not mean they have any relationship to each other. An informed guess may have been more reliable. In assessing whether the number of first strikers is consistent with this trend or not, we need to recognise that the current long term trend is for a continued decline in most offences, not a static position. The supposed comparison has been used to assert a decline in recidivism. We know that there are many reasons why the total number of sentenced offenders fell by 12 percent over this time, but we cannot separate the causes by crudely comparing calculations of sentence types. The nature of the process from offence to prison is also different because the stakes changed by introducing new consequences.

There has been insufficient understanding of the lag effects in implementing the law and of the consistency of how it would be applied. Were anyone still to find these misleading calculations to be of any value in these comparisons, then they would want to take account of the different amounts of activity covered by the two five-year periods. There was a slow start[3] from June 2010 to September 2011 for generating first strike cases, which would have been responsible for nearly half of the reduction in second strikes.

Crime generally has been falling since the 1990s, and for violent crime there was a peak around 2008/2009 and then a decline in cases taken to Court. This general fall in offending can be seen in most outcome measures including convictions. Sexual assault offending is stable and violence offences have declined since 2009. Changes to the Bail and Parole laws were poorly estimated several years ago when these laws were introduced into Parliament, and these forecasting errors demonstrate the perverse and unreliable nature of forecasting in the Justice sector. Currently, overall prison numbers have risen simply because more people who would have been on bail are now in remand and not serving a sentence, and parole is no longer granted to the same extent.

Yet again, as occurs across our Justice system, application of a new law will be targeting Māori and Pacific offenders disproportionately rather than those committing the worst offences. Little has changed since the 1970s when one in 14 Māori boys of each birth cohort[4] were taken into institutions by the state alongside one in 100 Pākehā boys. We furthered this experience by a massive shift during the following decade[5] in the incarceration of young Māori men for property offences over a period when violent offending was both low and falling. Deliberation now on offending needs to be founded on knowledge rather than ignorance of our recent history in criminal justice.

While the arguments for the law link it to the need for proper redress for victims, we simply do not know whether there is a connection. The existence of the three strikes law may delude our Parliamentarians into believing that providing redress for victims is this manner best reflects their interests. For this we have no evidence.

 

[1] 4406 (2017). Jacinda Ardern to the Minister of Justice (18 May 2017): What is the rate of recidivism, if any, of people convicted under the three strikes law? Hon Amy Adams (Minister of Justice) replied: I am advised that the Ministry does not delineate recidivism rates relating to people convicted of an eligible offence under the Sentencing and Parole Reform Act 2010.

[2] Three Strikes – Five Years On Inaugural Greg King Memorial Lecture, Victoria University of Wellington Faculty of Law, 30 September 2015. Dr Warren Brookbanks LLD

[3] Habitual criminal legislation in New Zealand: Three years of three-strikes  James C Oleson Department of Sociology, The University of Auckland, New Zealand  Australian & New Zealand Journal of Criminology 2015, Vol. 48(2) 277–292

[4] How many Offend?  A A Donnell and R J Lovell   Department of Social Welfare 1982

[5] Trends in imprisonment   Justice Statistics 1990 Department of Statistics

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