Legal Beagle by Graeme Edgeler

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Legal Beagle: Three strikes (w/ updates)

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  • Lucy Stewart,

    Aw, thanks, guys.

    Leading on from Steven and Joe's posts, you both mirror my experiences with petty criminals: they turn to crime because it seems easier, and it seems easier because life seems insurmountable if you're semi-literate, or very poor, or just not very bright. Turning prisons into hard-labour camps just reinforces - especially to first-time offenders - that the world, personified by the State, is out to get them. The comparison to Auckland Zoo is especially apt. If we treat prisoners like they're less than human, what can we expect in return?

    Which isn't to say, as I noted earlier in the thread, that there aren't some hardened and unrepentant criminals who need to be locked away to protect society at large. But they're not the majority, and, importantly, we need to consider how to protect *other prisoners* from them - if Graeme Burton is stabbing people in prison, then we're failing to protect society from him, because prisoners are also part of society. If we say they aren't, if we exclude them to that level, then no wonder they don't see any value in playing by society's rules.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • BenWilson,

    Prison isn't meant to be a picnic. That goes towards deterrence and retribution. To that extent I'd probably be opposed to prisoners getting 6 course meals from famous chefs, regular rounds of golf, fishing trips, day trips to Rainbow's End, access to the finest whores, shopping sprees, pedicures, fine wines, chocolates, coffee and caviar, rock concerts, etc, all on a daily basis and at the taxpayer's expense. But you can take punishment too far, to the point where it compromises rehabilitation completely.

    Auckland • Since Nov 2006 • 10653 posts Report Reply

  • Joe Wylie,

    . . . if Graeme Burton is stabbing people in prison, then we're failing to protect society from him, because prisoners are also part of society. If we say they aren't, if we exclude them to that level, then no wonder they don't see any value in playing by society's rules.

    There was a drink-driving TV ad a while back in South Australia that showed a guy arriving in jail and being eyed up by the inmates, with the blatant suggestion that he was about to receive some unwelcome sexual attention. As the state had recently increased penalties for such offences, drink-driving was presented as something that could land you, the complacent middle-class viewer, in jail. And it's a received wisdom that such things happen in jail, isn't it? After all, no-one likes to be taken by surprise by life's nastier aspects. Fortunately it was pulled after protests, as it crossed the line into a particularly barbaric area that suggested that being raped in jail was part of state-sanctioned punishment.

    I really doubt that Sensible Sentencing et al would have had a problem with such an approach. Hinting at an intimate knowledge of what goes on in the prison system in order to intimidate 'middle-class' critics betrays an attitude that endorses the fostering of monsters such as Graeme Burton within the system because of their imagined punitive value.

    There's plenty of anecdotal evidence, going back many years, of prisoners being exposed to dangerous inmates as a form of coercion, with those unpleasant characters enjoying rewards and privileges in return for playing their part. These are practices that desperately need to be reformed and eliminated, rather than cynically encouraged.

    flat earth • Since Jan 2007 • 4593 posts Report Reply

  • Stephen Judd,

    Apropos deterrence: my summer reading has been The Newgate Calendar, which is a prurient compendium of accounts of 18th century crimes.

    At the time the Newgate Calendar was being compiled, England still had the so-called Bloody Code, which imposed the death penalty for anything more serious than minor theft (this is why transportation to the colonies was seen as a marvellously humane improvement).

    What I learned from reading the lurid accounts in the Calendar was that the prospect of being hanged if caught did not prevent habitual criminality to any extent at all. One reason was that there was no police force at that time, so being caught was somewhat less likely. But what I infer is that no one who commits a serious crime believes they will be caught. No one cares about something which they don't think will happen. Hence the severity of the punishment is irrelevant.

    If there were a truth-in-charity-name law, the SST would be called the Gratifying Vengeance Trust. If it's not about the vengeance, why does the SST always focus on victims and grieving family members and their feelings? The odd reference to crime prevention is a figleaf. It's all about the revenge.

    Note, I think sentencing requires an element of revenge. People's need for revenge needs to be somewhat satisfied lest they take matters into their own hands. But the SST is all about the revenge. Specifically, they are about revenge for middle-aged, middle-class people, which is why Garth McVicar is so sympathetic to Bruce Emery. That's why their hand-wringing is so odious.

    Actually, when I think about, the SST would probably like to bring back a Bloody Code regime. Death for tagging! The King's pardon for shopkeepers! Petty thieves to be burned in the hand! Costs to be recouped by screening on Sky.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • David Garrett,

    Some of the comment since my post has been reasonable; much has simply been ad hominem argument directed at me personally - no surprise there.

    May I suggest that anyone considering adding to this "debate" first looks at the post by Mr Edgeler which began this ("thread" - is that what it's called? I am new to this "blogging")

    He begins with a caveat to the effect that he is not in favour of "three strikes" type legislation, then concedes that the bill I drafted has carefully addressed all the faults in the Californian version. I also wonder how many of the people commenting have actually READ the Bill? The ACT version is still available on our website; the latest incarnation which blends ours into National's Sentencing and Parole Reform Bill is available on parliament's website.

    Those who can be bothered to actually look at both will see that National's list of "strike" offences is actually considerably broader and longer than mine. But then why bother actually reading the bills? Much more satisfying to simply rant on here!

    Oh, and for the contributor who suggested I should get some data from a university, I have a BA in politics and history, and an LL.B (Hons) from the University of Canterbury. When drafting the bill I took advice from several left wing academics in the US with strong - and perfectly valid - objections to the California version. I remain in touch with one of them.

    I have several academic papers containing data which show considerable crime reduction effects in several American States with "three strikes" laws, but then you probably wouldn't want to bother with them either....

    auckland • Since Feb 2009 • 6 posts Report Reply

  • Stephen Judd,

    David, to what do those papers attribute the crime reduction? Deterrence, or the fact that offenders can't reoffend while in jail? Both? Something else?

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Hilary Stace,

    Listening to the lived experience of those who have been in prison regularly can be the best way to inform the rest of us. People don't generally make rational decisions to commit crime while considering all the possible consequences. More likely their lives are already likely to be chaotic and impulsive and tough, and probably have been since they were children.

    Programmes like Incredible Years (run by MSD) are now starting to work with young children already displaying problematic behaviours and their families with some very good results. But we need more input at this level.

    I've mentioned this before but the book 'Stuart: a life backwards', a biography of a young man who is a chronic criminal is fascinating and certainly challenges prejudices.

    Wgtn • Since Jun 2008 • 3214 posts Report Reply

  • Graeme Edgeler,

    I also wonder how many of the people commenting have actually READ the Bill? The ACT version is still available on our website; the latest incarnation which blends ours into National's Sentencing and Parole Reform Bill is available on parliament's website.

    Those who can be bothered to actually look at both will see that National's list of "strike" offences is actually considerably broader and longer than mine.

    That is true, but I'd also not that the original draft had some relatively minor crimes on it - injuring by unlawful act, for example. And had a bunch of omissions that didn't make much sense - assault with intent to injure was considered serious enough to count as a strike, but assault with intent to rape wasn't.

    The current combined version makes a lot more sense when considering what's been left in and what was left out. It also avoids the much greater injustice likely under the original by applying at each step only to crimes that would actually result in five-year sentences.

    But then why bother actually reading the bills? Much more satisfying to simply rant on here!

    To be fair, most of the recent comment has been around these statements of yours:

    by and large, the middle class don't understand that deprivation of liberty per se is NOT a great punishment for many criminals.
    ...
    Habitual crims are relatively happy with three square meals a day cooked and paid for by someone else, TV 24/7 if they wish, gyms that as Simon Power said in the House that would cost a hefty annual fee out in the community, and being in a place where work is entirely voluntary.

    Have you actually BEEN inside a prison... etc

    And not about the bill per se. It's been discussion about the efficacy of prisons and arguments around rehabilitiation and the (in)humanity of our current justice system for a couple of pages now. I'm happy to play host to either :-)

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • 3410,

    Some of the comment since my post has been reasonable; much has simply been ad hominem argument directed at me personally - no surprise there.

    David, your first comment here attacked Lucy for allegedly being "middle class", so maybe the high horse could use a rest, huh?

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • George Darroch,

    Well that's not true. Apart from the fact that we didn't have prisons 200 years ago.

    Prisons are very different, and in some areas NZ Corrections have programmes of international standards in terms of recidivism.

    You're right, I did overstate things a little. While prisons as an institution are largely the same, there have been efforts made at reform, some significant and some minor. Those programmes are worthwhile and have changed the prison environment somewhat, and Corrections do make use of them. Unfortunately, they're only a small part of what Corrections does.

    A large part of this is that Corrections is tragically underresourced, and putting the prison population up by 60% in just a few years has strained them and their ability to offer these programs even further. In this kind of environment, maintaining security must be their first concern, and everything else relegated.

    But it's also the fault of the "law and order" lobby, who bitterly oppose spending on such travesties, and politicians who would rather put money elsewhere. Giving prisoners decent food has been shown to radically improve behaviour, for example. But do that and you'll get even more reACTionary responses.

    And, it needs to be said, this is an issue of race. Half of NZ's prison population is Māori, who are imprisoned at almost 7 times the rate of the rest of the population. "Getting tough on criminals" means getting tough on Māori... easy to see why it's a popular game in NZ.

    WLG • Since Nov 2006 • 2264 posts Report Reply

  • giovanni tiso,

    And, it needs to be said, this is an issue of race. Half of NZ's prison population is Māori, who are imprisoned at almost 7 times the rate of the rest of the population. "Getting tough on criminals" means getting tough on Māori... easy to see why it's a popular game in NZ.

    Sorry, I'm going to have to call logical fallacy on this one. You could equally say that since males are over-represented in the prison population, then getting tough on crime means getting tough on men. Which is not to say I necessarily think your conclusion is wrong, but things may be a little more complex than your straight syllogism suggests. It could equally be a war on the poor, for instance - "tough on crime" policies invariably originate from the portion of the political spectrum that is either not interested in delivering social justice, or that devolves that task to the market and free enterprise.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Kumara Republic,

    And, it needs to be said, this is an issue of race. Half of NZ's prison population is Māori, who are imprisoned at almost 7 times the rate of the rest of the population. "Getting tough on criminals" means getting tough on Māori... easy to see why it's a popular game in NZ.

    The stats also say that a further 11% of the inmates are of Pacific Island descent. I agree it's not so much a race issue as it is a class/rank issue that happens to be racialised. Interestingly, the same stats also point out:
    "On the other hand, as a group, Pacific offenders have a lower average risk of reconviction than do Māori or European offenders."

    It could equally be a war on the poor, for instance - "tough on crime" policies invariably originate from the portion of the political spectrum that is either not interested in delivering social justice, or that devolves that task to the market and free enterprise.

    * Private Prison Riot at New Castle, Arizona - from a libertarian viewpoint
    * Dallas News 7/2/2009 - West Texas riots renew debate over private prisons
    * Delco Prison: “Too many deaths”
    * The Southern 5/6/2007 - State police join Pulaski County in detention center riot investigation

    All the above are managed by the GEO Group, which is the infamous Wackenhut Corp in different clothes. More from this rap sheet and the American corrections union.

    The southernmost capital … • Since Nov 2006 • 5430 posts Report Reply

  • David Garrett,

    I don't how to incorporate his comment (as others have done in their posts) but this is an attempt to respond to Stephen Judd.

    The answer to your question - as usual in academic papers - is less than clear. And as usual, different academics say different things, depending on their own bias. We see that here in NZ - Dr. Greg Newbold's views are pretty much the polar opposite of those held by Professor John Pratt.

    The two effects you refer to are known as incapacitation (you can't reoffend while inside, or at least not against the general public) and deterrence.

    Interestingly , a paper referred to in the explanatory note to the Bill itself (which is complied by the Justice Department, whose officials hate the "three strikes" idea) suggests that there is a 20-30% deterrent effect on those in jail for their first strike, in other words because of the three strikes law, they are 20-30% less likely to reoffend on release than they would have been had there been no three strikes law.


    I have no training in statistics, and the paper is quite technical, but that is its conclusion.

    The incapacitation argument is much easier to understand as you would expect. I can best illustrate that by our claim during the election that there were 78 killers in jail (now 77 since Dixon topped himself) who, at the time they committed the homicide for which they were incarcerated, had served at least three prior "sentence episodes" for violent offending.

    (In Corrections Dept. speak, a "sentence episode" for violent offending is one trip to jail for one or more offences of violence. In other words, many of those 77 will have committed many more than three offences of serious violence. Due to our illogical concurrent sentencing laws, one "sentence episode" may be for - say - two armed robberies, an assault, and an attempted escape from custody.)


    In other words, had a three strikes law been in force when those 78 people killed someone else, their victims would be alive today - or at least their deaths would have been from some other cause.

    I have repeated that claim in parliament a couple of times - to deafening silence from the Labour party - presumably because they know I can back it up by producing OIA responses from the Ministry of Corrections which confirm those figures. Getting those answers took more than six months and a threat to make a complaint to the Ombudsman. Not surprising when you think about it.

    auckland • Since Feb 2009 • 6 posts Report Reply

  • David Garrett,

    David, your first comment here attacked Lucy for allegedly being "middle class", so maybe the high horse could use a rest, huh?


    I am unsure how suggesting that Lucy is probably middle class is an "attack" since I am, by definition, a member of the middle class myself...the difference is that I was not always so, and I had experiences during eleven years working in the oil drilling industry in several different countries that most middle class people have not had. Guys who work on offshore rigs - particularly out of Morgan City Louisiana - are not usually choir boys...although a surprising number regularly attend church ...it's just that they go armed in case of trouble!

    At one time or another, several guys who have done lengthy sentences have been personal friends or at least acquaintances. Their experiences and perspectives are an interesting counterpoint to the academics' ...and those of the Wadestown liberals....

    auckland • Since Feb 2009 • 6 posts Report Reply

  • giovanni tiso,

    Their experiences and perspectives are an interesting counterpoint to the academics' ...and those of the Wadestown liberals....

    I'd go easy on the labels, unless you want me to break out "oilrig wanker". The thing is: you don't know us, and assuming that we have had this or that experience is simply ignorant and dumb.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Joe Wylie,

    Wadestown liberals....

    Been a long time since I've heard that one.
    As I said earlier, pretentious prolier-than-thou contest. And you're still at it. So long as sweeping generalisations are all the go, I'll take the opportunity to note that the world's a far more complex and diverse place than the average grandstanding lawyer could ever begin to guess.

    flat earth • Since Jan 2007 • 4593 posts Report Reply

  • Danielle,

    Guys who work on offshore rigs - particularly out of Morgan City Louisiana - are not usually choir boys...

    Oh, man! I would *so* win a 'Louisiana proles' contest! It's a pity I think the whole concept is flawed...

    Charo World. Cuchi-cuchi!… • Since Nov 2006 • 3828 posts Report Reply

  • 3410,

    I am unsure how suggesting that Lucy is probably middle class is an "attack" since I am, by definition, a member of the middle class myself...

    Take "... attacked Lucy" as shorthand for "attacked Lucy's argument". Let's agree to call it "responded to... ", if "attacked" is too colourful. Nevertheless, the substance holds.

    Anyhow, thanks for contributing to the discussion.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Lucy Stewart,

    This *would* be the afternoon my internet connection went down, wouldn't it?

    David, since you're participating, how many of those 78 people you mention had been sentences to three or more sentences of more than five years? You say they had served more than three "sentence" episodes; you do not mention whether in all cases the length of these would have qualified them under the three strikes law. I assume that you can affirm this, but I'm curious, since you weren't specific. I note also that since this thread tended towards affirming that the law sounded at the least reasonably formulated, before we moved onto other topics, and if this were the case, it would seem to confirm that. (Although, hey, any explanations for the inclusion of incest in addition to all the other sexual assault offences?)

    And, while it seems I've been defended in my absence, to recap Giovanni: you don't know anything about me, and making assumptions about my background which are irrelevant to the argument do, at the least, come across as ad hominem. How does my class possibly affect the matter debated? It may not have been meant insultingly, but it came across as an attempt to diminish my argument on the basis of my identity, which I don't think anyone here appreciates.

    If you're worried about my hotel room joke - well, it was meant jokingly. I'm sorry if you felt it was an attack on your person rather than your ideals; I certainly didn't mean it that way.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • Stephen Judd,

    You know, this discussion might have been completely different if the legislation were called the Recidivist Violent Offender Incapacitation Bill.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Lucy Stewart,

    You know, this discussion might have been completely different if the legislation were called the Recidivist Violent Offender Incapacitation Bill.

    Indeed. For starters, "(R)VOIB" is close enough to "VOIP" to be confusing.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • Graeme Edgeler,

    You know, this discussion might have been completely different if the legislation were called the Recidivist Violent Offender Incapacitation Bill.

    Because the Sentencing and Parole Reform Bill sounds too draconian?

    [I believe "Reform" is in there because to substantively amend separate pieces of legislation - generally not allowed under standing orders - the bill has to be called a reform bill]

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • David Garrett,

    David, since you're participating, how many of those 78 people you mention had been sentences to three or more sentences of more than five years? You say they had served more than three "sentence" episodes; you do not mention whether in all cases the length of these would have qualified them under the three strikes law.

    Yes Lucy, they were all convicted and sentenced for offences which would have qualified them as "strikers" under the Bill as I drafted it, which actually had, as "strike" offences, pretty much the same list as it has now. I then thought the list a little too broad and narrowed it down; (see the version on the ACT website) the Nats have pretty much restored my original list of offences.

    Now perhaps someone can help me...at age 51, I find some of the terms used on here meaningless...what is a "prole" ?? Surely these sneering references to my wining a "king of the proles" competition cannot be a reference to members of the proletariat, which is what "prole" meant when I were a lad?....

    This is a left wing site isn't it? Are you all champions of the "proles" or is that only the ones who agree with you?

    auckland • Since Feb 2009 • 6 posts Report Reply

  • steven crawford,

    This is a left wing site isn't it?

    I certainly hope not!

    Atlantis • Since Nov 2006 • 4414 posts Report Reply

  • Joe Wylie,

    This is a left wing site isn't it? Are you all champions of the "proles" or is that only the ones who agree with you?

    Now you're just being cute. Left wing, right wing - you know there's more to people than that, particularly if they're genuinely concerned about finding solutions to pressing issues without without adhering to blind ideology.

    Hopefully you're over the oil rig posturing - dressing up as some kind of Village People stereotype's hardly likely to get anyone to take you seriously, in or out of jail.

    flat earth • Since Jan 2007 • 4593 posts Report Reply

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