Wednesday, 4 March 2009

Strike out

Attorney General Chris Finlayson pointed out on Monday out that ACT’s three-strikes policy would violate the Bill of Rights Act – and so it would.  It’s not about “rights for violent criminals,” as Radio NZ erroneously reported, but as Finlayson quite properly says,

the legislation could result in "disparities between offenders that are not rationally based" and "gross disproportionality at sentencing", which raised the apparent inconsistency with the Bill of Rights [protecting New Zealanders against cruel, degrading or "disproportionately severe" punishment].

It would raise the likelihood, or at least the possibility, of an offender being sprung for a five-year offence having nothing to lose by going on to commit murder before he’s caught.  After all, if simple assault and mass-murder get the same sentence, what has he got to lose?  And it would raise the possibility, if not now but in the future, of those found guilty of victimless crimes being locked up and watching the key be thrown away.

Why ACT ever went with the ‘three-strikes’ populism Lord Ansell alone knows, when the proven success story they might have promoted instead was the Broken Windows model, or the simple right to self-defence.

And why ACT ever went with David ‘Nutcracker’ Garrett as an MP for their supposedly classically liberal party I guess we’ll never know.  (Garrett, when told of Finlayson’s findings responded: "So what?  Alter the Bill of Rights Act. We've got too hung up on people's rights."  Which tells you all you need to know about Mr Garrett, I guess)

Graeme Edgeler points out the further problems with the three-strikes policy here, while laying a few myths to rest [hat tip Kiwiblog].

And David Farrar posts on a controlled experiment in Boston to test the Broken Windows methodology.  And guess what: it worked.  Again.


  1. There IS a way of running three-strikes such that you don't have the severity-shift you're worried about. How? First offense on the list gets its normal punishment. Second offense on the list gets a punishment of no less than twice the average penalty accorded for that offense to offenders prior to the law being changed; third offense gets no less than triple.

    Not saying I advocate such a policy. But it would nicely maintain proportionality of punishment to the offense so that you wouldn't have the incentive to murder the witness.

    Evidence on broken windows is pretty mixed. Levitt argues pretty convincingly that it doesn't explain much over the 1990s. I've only skimmed the Boston study, and it looked to be promising. Will have to give it a closer look.

  2. The three strikes policy is a blunt instrument, however the eventual effect is that incorrigible recidivist criminals end up being locked up where they can't cause any more trouble, rather than being out on the streets. It's hard to commit a crime if you're locked up, and it only applies to people who are pretty clearly criminals, not those who are wrongly convicted of a single incident.

    So, while there are plenty of problems with it, it's better than feeling sorry for how they were treated as a kid and letting them get away with crime after crime on the outside.

  3. There is no problem with the severity of the punishment of the 3rd strike because the proportionality doctrine does not apply in such cases. We don't apply it to those not-guily by insantiy whom we still lock up, ditto with self-defence, quarantine, etc. so why here?

    The point is that habitual re-offenders of serious violent crimes are a danger to life, liberty and body. Force for punishment is being confused with defensive force.


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