Legal Beagle by Graeme Edgeler

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Legal Beagle: Three strikes (w/ updates)

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  • Graeme Edgeler,

    Minor drug dealing, unarmed robberies, traffic offences - all fine. Stay away from the serious violence, rape, murder. Your 5 year crime is suddenly going to cost you 25.

    Even major drug dealing isn't going to get you a third strike. For something to count as a strike, a few things are needed:

    1. the offence must have been committed after the law comes into effect.
    2. the offence must have been committed after the offender had turned 18.
    3. the offence must be one of the 37 specifically listed offences in the law.
    4. The sentence imposed (or that would have been imposed) must be at least five years imprisonment.

    Drug dealing, traffic offences, property crimes like theft or fraud - even if they result in lengthy sentences exceeding 5 years, do not count as strikes.

    [I'd note, however, that some unarmed robberies (e.g. where there is more than one robber) can count as aggravated robberies.]

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Gareth Ward,

    Summary of this thought: This law is not aimed at the minds of criminals, who it considers to be lost causes. It's aimed at the society in which they are offending, which can be made happier and safer.

    Yup I would largely agree with that.
    Although I have been arguing for a while that deterrence doesn't work by adding a couple of years to a possible sentence (no offender would really be judging the risk that closely, assuming any of them fully understand the sentencing implications of their crime) - to work it has to be a really significant, well-known punishment. Yet I couldn't see how that would end up being an overall "fair and just" sentencing regime. This law does seem to deliver in that manner, although I agree that the overall deterrence is going to be insignificant in the scheme of things.
    But you might just find one or two serious offenders who now think "life imprison for the next serious one, might be a bit more careful now" in a way that would never have happened with minor toughening up of sentences. Is it worth the messing with base principles of sentencing? Not sure - would have certainly said no originally, but Graeme's analysis suggests that it's pretty tightly focussed

    Auckland, NZ • Since Mar 2007 • 1727 posts Report Reply

  • BenWilson,

    Seems like a classic case of Kiwis at work. They will overwhelmingly vote in a Government that differs from it's opponent in only quite minor ways, once you actually get down to nitty gritties. We bring in a law that sounds like a big change, but once the actual human beings that have to enact it get to work, fiddle with it, apply their instincts and training to it, you get something that's really quite a small change.

    It's one of the good things about NZ, IMHO. We get a right wing party that's actually centrist, and hard-right laws that are barely right-wing at all. It's a highly conservative system, rather than a radical one, and to me that's usually a sign of a functioning democracy.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Graeme Edgeler,

    Stay away from the serious violence, rape, murder.

    This provides me with a lead in to discuss the other change to be inserted by this bill.

    As well as being the mechanism for fulfilling their promise to ACT to support three strikes legislation to select committee, and the means by which to rbing in their pre-election promise of "no parole for the worst repeat violent offenders" (as noted in this comment there is no parole eligibility on the second strike ), this legislation is also the means for National to cover off its promise/slogan that "life would mean life for the worst murderers".

    In this regard, the law has two effects:

    1. If murder is the first offence that qualifies as a strike, the judge has the option of imposing a sentence of life imprisonment without parole.
    2. If murder is the second or subsequent strike, then the judge must impose a sentence of life imprisonment without parole .

    [The rule is tempered somewhat by an allowance that the judge need not impose such a sentence if it would be manifestly unjust to do so (in which case a finite non-parole period would be imposed) but this won't apply often.]

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Emma Hart,

    Although I have been arguing for a while that deterrence doesn't work by adding a couple of years to a possible sentence (no offender would really be judging the risk that closely, assuming any of them fully understand the sentencing implications of their crime) - to work it has to be a really significant, well-known punishment.

    They're not just not 'judging the risk that closely': by and large they don't know what the sentence IS. Ergo changing it isn't going to make the blindest bit of difference as far as deterrance goes. (Though because of the publicity obviously this bill is different.)

    My experience (which admittedly is down the not 25 years end of the scale) is that people simply don't think they're going to get caught . Therefore the penalty is irrelevant.

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Lucy Stewart,

    My experience (which admittedly is down the not 25 years end of the scale) is that people simply don't think they're going to get caught. Therefore the penalty is irrelevant.

    I think that's true of everyone who breaks the law. They magnify the rewards, and reduce the risk. I don't really believe in longer sentences as deterrents; they're not, any more than capital punishment eliminates crimes it is applied to.

    But I *can* see something of a place for the idea that some people just are too dangerous to let out. The trouble is, I don't think we invest nearly enough in prevention and rehabilitation to stop people getting to that point, and until and unless we do, all this law will do is mean some people go down for longer once they've reaches a point of being really bad. Even if its use is restricted to the most heinous of criminals, it's not going to stop them doing those things in the first place. It's all very ambulance/cliff-like.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • BenWilson,

    Therefore the penalty is irrelevant

    Not much relevant to deterrence, for sure. Highly relevant to other concepts in punishment. Incapacitation. Retribution. Maybe even rehabilitation, if you are figuring that a longer term might be the only way to get through to some people who have already been tried on a shorter term.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Kyle Matthews,

    My experience (which admittedly is down the not 25 years end of the scale) is that people simply don't think they're going to get caught. Therefore the penalty is irrelevant.

    Yes exactly. That's the basic fault with penalties as deterrents. People either commit crimes in the heat of the moment/passion etc, or, do it with the assumption they won't be caught and end up in jail.

    Particularly with the more serious crimes like rape, murder etc. I can't imagine many people, while committing the act are thinking, "man, I'm going to get XX years for this".

    Since Nov 2006 • 6243 posts Report Reply

  • Graeme Edgeler,

    Yes exactly. That's the basic fault with penalties as deterrents.

    David Garrett and the Sensible Sentencing Trust really are not thinking of this law, or any of the other increases in sentences they've been pushing over the last decade or more as using the criminal justice system as a deterrent.

    This is about incapacitation, not deterrence:

    You have proved that you are incapable of functioning in civil society, so we're going to send you to prison where you can't hurt anyone.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Gareth Ward,

    They're not just not 'judging the risk that closely': by and large they don't know what the sentence IS. Ergo changing it isn't going to make the blindest bit of difference as far as deterrance goes. (Though because of the publicity obviously this bill is different.)

    Yup, that's my point. But in the case of this law they may well know what the sentence is for that third strike, in the loosest, I-saw-it-on-that-news-shit sort of way.
    Deterrence is normally unworkable because it requires massive sentences to really affect the rationality assumptions that underpin that argument. And those massive sentences would normally be unjust - but here we may have a circumstance where actual sentences imposed aren't manfestly unjust but the "potential criminal" perception is that the penalty is massive.

    I am literally talking about one or two people though - those who are treating very serious assaults etc a little too lightly and rationally - with the majority ignoring it as per. So I'm not convinced this hypothetical effect is all that significant.

    Auckland, NZ • Since Mar 2007 • 1727 posts Report Reply

  • BenWilson,

    I wouldn't underrate retribution as a motive, personally. "Send you to a prison where you can't hurt anyone" is only half the story. The other half is "Where you will also get hurt yourself quite a lot, and where your days will be spent in the misery of deprivation that only prisoners can truly appreciate". If incapacitation were the only motive, you wouldn't hear such bitter complaints about the minor luxuries afforded to prisoners.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Lucy Stewart,

    I wouldn't underrate retribution as a motive, personally. "Send you to a prison where you can't hurt anyone" is only half the story. The other half is "Where you will also get hurt yourself quite a lot, and where your days will be spent in the misery of deprivation that only prisoners can truly appreciate". If incapacitation were the only motive, you wouldn't hear such bitter complaints about the minor luxuries afforded to prisoners.

    Oh, yeah - the SST and friends are all about giving people "what they deserve". They don't seem to grasp that just *being in prison* is a punishment, and a pretty severe one. It doesn't matter whether the TV in the common room is flatscreen or CRT if you never get to use the remote. And you can (falsely) compare prisons to hotels all you like, but if you never got to leave your hotel I imagine the appeal would pall quite quickly.

    Actually, hey, that's an idea: lock David Garret in a hotel room with a plasma TV for five years and see if he still thinks it's better than they deserve afterwards.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • BenWilson,

    Indeed. Also, the idea of exile would perfectly serve the incapacitation criterion, but no one likes that idea any more, because being abroad just isn't as punishing as it may have been in the past.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • giovanni tiso,

    Actually, hey, that's an idea: lock David Garret in a hotel room with a plasma TV for five years and see if he still thinks it's better than they deserve afterwards.

    Best idea I've heard all month.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Emma Hart,

    For those not being inundated with S92 emails, I thought I'd share this.

    Hysterical response to Copyright changes rings alarms

    Principal of Entertainment Law Firm, Dominion Law Chris Hocquard has this to contribute to the ongoing debate over the implementation of a Code of Conduct for ISPs relating to repeat infringers of copyright works.

    ``It's very difficult to understand the hysteria being generated by such a simple solution.

    ``The Government has acted calmly and reasonably...

    ``It is regrettable that certain minority interests are distorting the situation. It really does make you stop and wonder, what is it they are actually trying to protect, their customers or their income streams. If you have a business model based on the illegal trafficking of other peoples' property then perhaps it is time to revisit that model.

    I know people are speaking highly of Chris Hocquard on the other thread, but for purposes of this one I'd just like to call

    BINGO!

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Emma Hart,

    Heh, obviously that should be on my thread. Duh. Anyone looking into what happened to my and Graeme's mod powers? There'll be lots of love...

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Kyle Matthews,

    You have proved that you are incapable of functioning in civil society, so we're going to send you to prison where you can't hurt anyone.

    There's a statement calling out for a little research into whether you're more likely to be injured by another person in prison, or out of prison.

    Since Nov 2006 • 6243 posts Report Reply

  • Graeme Edgeler,

    There's a statement calling out for a little research into whether you're more likely to be injured by another person in prison, or out of prison.

    Almost certainly in prison.

    I did think about this prospect, but ultimately decided I wasn't looking at it objectively, but rather giving the rationale of those who felt this way, and figured it was accurate.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Edward Siddle,

    Noone has really picked up a point earlier made by Graeme about the necessity for judges to impose life without parole sentences for murder when it is the second (or subsequent to second) strike. I'm a bit out of touch with how many murders are committed in NZ every year these days (thirty?), but i'd guess that of those murders, all but maybe one or two would have been committed by people with some kind of previous serious convictions and probably prision time. as graeme said, the 'manifestly unjust to impose a life means life' provision isn't going to be used that often, so this is going to make a major contribution to the prison population in about 15-20 years after the law takes effect.

    i know this isn't as intellectually interesting as discussing the purposes of sentencing, and it seems so far in the future, but this stuff is a serious financial timebomb we'd be taking on in terms of imprisonment costs and all associated costs (such as healthcare of ageing prisoners). 30 (or let's say 27) a year might not sound a lot, but give it time and the numbers begin to add up when you're not letting these people out again at whatever point they would currently get out at (non parole is a standard 10, so i'm guessing about 13 years probably gets served by most of these).

    Wellington • Since Sep 2008 • 54 posts Report Reply

  • Kyle Matthews,

    I did think about this prospect, but ultimately decided I wasn't looking at it objectively, but rather giving the rationale of those who felt this way, and figured it was accurate.

    Yes.

    And to be fair, my 'research' isn't a fair comparison either.

    A more valid one would be 'would there be more violence if these group of convicted people were in jail, or out of jail'.

    Since Nov 2006 • 6243 posts Report Reply

  • Lucy Stewart,

    I'm a bit out of touch with how many murders are committed in NZ every year these days (thirty?), but i'd guess that of those murders, all but maybe one or two would have been committed by people with some kind of previous serious convictions and probably prision time.

    Around half, if not more, of murders in New Zealand are also domestic violence incidents*, so I wouldn't be surprised if this were not true. High profile murders are committed by people with long records; many others are someone losing their nut and bashing their partner or offspring. It's equally as serious, but not as good for publicity.

    *Disclaimer: this is based on the number of people murdered last year in DV incidents as per a It's Not Okay ad on the back of a bus , divided by the average number of murders a year (about 50-60). Take that as you will.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

  • icehawk,

    Hmm.

    Has any analysis been done on just how many people would have been affected by this in the last few years? Does anyone have a link to such analysis?

    I realise an injustice is an injustice whether it's committed on one person or on three hundred. But I do wonder whether this is a bill that will have much effect or just a propaganda piece.

    Wellington • Since Sep 2008 • 49 posts Report Reply

  • Graeme Edgeler,

    I'm a bit out of touch with how many murders are committed in NZ every year these days (thirty?), but i'd guess that of those murders, all but maybe one or two would have been committed by people with some kind of previous serious convictions and probably prision time.

    Prior to the election, the statistics were quoted in the New Zealand Herald as:

    It is understood National's research shows that of the 144 offenders convicted of murder since 2002, 10 would be in this category.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • BenWilson,

    LOL Google News finds me this amusing gem. Emma's slip up is nothing compared to this

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Lucy Stewart,

    LOL Google News finds me this amusing gem. Emma's slip up is nothing compared to this

    Er, actually? Section 92A was also known as the "three strikes" law at one point, and that's what they're referencing. My techie fiance thought that's what I was talking about when I asked him what he thought about the "three strikes" law. It's amusing in context, but it's not a genuine error.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

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