Legal Beagle by Graeme Edgeler

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Legal Beagle: Three strikes (w/ updates)

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  • Graeme Edgeler,

    If someone can point me to a copy of the bill as introduced, I'll make sure to provide appropriate updates in the comments.

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

  • WH,

    It seems to me that the best that can be said for three strikes laws is that they ostensibly recognise that repeat serious offending is more culpable than the sum of its parts - they reflect the idea that there must be a price for repeatedly refusing society's invitation to change. I think you're right to say that the major objection is that people would receive sentences that the seriousness of their actual offending may not warrant.

    I wonder whether there is a better way to recognise the concerns that motivate these sorts of proposals, even if that takes us to familiar differences about the value of retributive justice, the prospects of genuine rehabilitation, the rights of victims and potential victims, and the effectiveness of our criminal justice system. All of which I'm curious like to know more about.

    Since Nov 2006 • 793 posts Report Reply

  • Don Christie,

    Indeed, the Sensible Sentencing Trust’s David Garrett claims to have gone to the US,

    In parliament yesterday the guy was saying 1 strike was enough. Somehow I found that less than reassuring.

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Graeme Edgeler,

    Well that wasn't too long :-)

    The bill is available here.

    And the Attorney-General's report is here.

    It appears to quite different. Indeed, it is even less onerous that the draft bills I was working from. Hopefully I can get back to y'all later.

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

  • Paul Campbell,

    for heaven sakes can't we avoid the baseball metaphor and come up with something of our own

    I like "10 wickets and you're gone"

    Dunedin • Since Nov 2006 • 2618 posts Report Reply

  • giovanni tiso,

    After hearing the reports on the radio this morning I was hoping for a thread called "the public worse". Because surely this represents a far more backward development for the country than the much reviled s92a? Just throwing it out there.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Graeme Edgeler,

    After hearing the reports on the radio this morning I was hoping for a thread called "the public worse".

    Well the reports on the morning TV news were pretty bad (i.e. grossly inaccurate about the effect of the law) so you might not be as aghast as you think you are.

    Also, while the bill incorporates National's promised law changes, the effect on a third strike has only been supported as far as select committee.

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

  • Graeme Edgeler,

    for heaven sakes can't we avoid the baseball metaphor

    Maybe, when used in New Zealand, it's a softball metaphor :-)

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

  • Russell Brown,

    Thanks Graeme. I am somewhat relieved to hear that the bill isn't quite as bad as those in US states. Three strikes has been a disaster in California.

    Auckland • Since Nov 2006 • 22811 posts Report Reply

  • Robert Harvey,

    What a can of worms this opens up! Some aspects have even entered the language as aphorisms, e.g. ‘might as well be hung for a sheep as a lamb’. Perhaps its proponents would like to bring back transportation? IANAL, but it seems to me that the logical framework of our legal system is undergoing change. For a long time we have had trial and sentencing principles that require those involved to ignore prior crimes and deal with the present problem in isolation, but now a defendant’s judgement history becomes integral to sentencing (and therefore, necessarily, trial procedures). Not just ‘three strikes’, but also the traffic ticketing points system operate this way, so no doubt other areas will follow (repeated bankruptcy, perhaps?). We may get more consistent sentencing out of this development, since anomalies show up more vividly as Graeme points out, but we will also get all the ills which the previous system took great care to avoid.

    Westmere • Since Nov 2006 • 62 posts Report Reply

  • Bart Janssen,

    I understand this bill is better than the CA version and claims of life for stealing candy are silly.

    On the other side how silly are claims that 70 people would not have been murdered if this bill was already law?

    What bugs me is this bill seeks to allow politicians to decide sentencing instead of judges. While I accept not all judges are created equal I have a greater trust in a judge to be sensible than a politician.

    The other issue for me is the question "is this really the most effective way of reducing crime?"

    I doubt it.

    Auckland • Since Nov 2006 • 4458 posts Report Reply

  • Ben Austin,

    So what is the logic in using the magic three number, aside from the baseball metaphor? Was there analysis done as to the average number of serious crimes/other committed? Perhaps we should consider who the target of this law is, the average numbers of crimes they commit etc, then determine if three offences is appropriate.

    Failing that I'd vote for something that co-opts "hitting someone for six", assuming it doesn't mean hitting them with a bat six times

    London • Since Nov 2006 • 1021 posts Report Reply

  • Sofie Bribiesca,

    In parliament yesterday the guy was saying 1 strike was enough. Somehow I found that less than reassuring.

    I thought he said he had people say to him, 1 strike was enough. I immediately thought of the Herald's Your Views.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Lyndon Hood,

    I think Garret used aggravated robbery in his example 'scumbag' case in his speech on the bill, which would imply it was in there.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Zippy Gonzales,

    The Three Strikes Bill reminds me of the Degrees of Murder Bill, which Act supported, back in the '90s. Although initially supportive, I ended up agreeing with the reasons for the DoM to be dumped. Similar lessons of over-proscription to be learned here.

    In fairness to the disastrous Californian 3 Strikes regime, at least it removed the moral hazard in picking and choosing the offences which would apply. For example, why are no white collar crimes included in the Bill? Is less societal harm caused by a repeat fraudster who wrecks the lives (and savings) of thousands, than by an aggravated assaulter?

    There's also the threat of future amendment. There is nothing stopping a future government from loosening the criteria for Three Strikes to kick in. Pardon the thin wedge cliche, but it's true.

    Wellington • Since Nov 2006 • 186 posts Report Reply

  • Paul Litterick,

    It is noteworthy that the drafting of this Bill has been outsourced to the psychotic sector. I am sure this will not be the only Bill to be provided by vested interests. We can only hope that it gets the scrutiny it deserves in Select Committee.

    Auckland • Since Nov 2006 • 1000 posts Report Reply

  • ScottY,

    Graeme, an excellent analysis. I'm pleased that the Bill is nothing like as draconian as the legislation in the US. What worries me, however, is that this may only be a start, and that the usual law-and-order mob will start clambouring for additonal offences to be added to the 3 strikes list - like, say, every 3 years.

    My more fundamental objection is that NZ's incarceration rates are already among the highest in the developed world. Do we really need to be throwing more people in prison?

    West • Since Feb 2009 • 794 posts Report Reply

  • Graeme Edgeler,

    I think Garret used aggravated robbery in his example 'scumbag' case in his speech on the bill, which would imply it was in there.

    It is there.

    Of course, it was being used as an example a few weeks before I received my Parliamentary draft, and it was till missing from that.

    It is noteworthy that the drafting of this Bill has been outsourced to the psychotic sector. I am sure this will not be the only Bill to be provided by vested interests.

    I very much doubt that was the case, having now seen the official bill. The SST had a draft bill which they quite liked. It had a bunch of problems (smacking, automatic life sentences for some second strikes, an odd selection of crimes it didn't apply to - child sex abuse, attempted murder, etc.).

    This Government bill doesn't have those problems. The SST version of the bill (ignoring something like smacking, or injuring by unlawful act) was on the liberal end of three-strikes laws. The version we actually got emasculates it even further.

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

  • Graeme Edgeler,

    Do we really need to be throwing more people in prison?

    Not my area of expertise. However, I'd note that as drafted this bill it is difficult to see how this law would result in there being more people being thrown in prison. Rather, it will result in some people who would already have been thrown in prison, being thrown there for longer.

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

  • ScottY,

    it will result in some people who would already have been thrown in prison, being thrown there for longer.

    Meaning more people in prison, surely?

    West • Since Feb 2009 • 794 posts Report Reply

  • giovanni tiso,

    Meaning more people in prison, surely?

    Elementary logic suggests, yes. As soon as what would have been a four year sentence expires, for the remaining 21 years you'd have one more inmate in the system than if the law hadn't been passed.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Graeme Edgeler,

    Hopefully I can get back to y'all later.

    The bill is quite a bit less draconian than the drafts I'd been working from. Still draconian, and still worth of a report under section 7 of the New Zealand Bill of Rights Act, but without a number of the issues I raised.

    So what has changed?

    1. The list of specified offences has grown. Some have gone, but more have been added.

    Gone:
    * injuring by unlawful act (thank goodness)
    * injuring with intent to injure
    * aggravated assault
    * assault with intent to injure
    * assault on a child or by a male on a female
    * disabling
    * cruelty to a child
    * poisoning with intent
    * infecting with disease
    * providing explosives to commit a crime

    These offences formed the lower end of the SST's list. Missing too is the proposed inclusion of dealing with class A drugs.

    Added:
    * attempted murder
    * attempted sexual violation, and assault with intent to commit sexual violation
    * sexual connection with consent induced by threat
    * incest
    * sexual connection with dependent family member under 18 years
    * attempted sexual connection with dependent family member under 18 years
    * sexual connection with child
    * attempted sexual connection with child
    * indecent act on child
    * sexual connection with young person
    * attempted sexual connection with young person
    * indecent act on young person
    * indecent assault
    * exploitative sexual connection with person with significant impairment
    * attempted exploitative sexual connection with person with significant impairment
    * compelling indecent act with animal
    * abduction for purposes of marriage or sexual connection):
    kidnapping
    * aggravated burglary
    * robbery
    * aggravated robbery
    * causing grievous bodily harm with intent to rob or assault with intent to rob in specified circumstances
    * assault with intent to rob

    Also back, after being gone in the Parliamentary draft are:

    * discharging firearm or doing dangerous act with intent to do grievous bodily harm; and
    * discharging firearm or doing dangerous act with intent to injure.

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

  • Graeme Edgeler,

    Meaning more people in prison, surely?

    Elementary logic suggests, yes.

    Yes. More people in prison, but not more people thrown in prison.

    If this - an increased prison muster in 15 years time, was what was being complained about, then the complaint is reasonable. I had understood "throwing more people in prison" to mean sending people there who wouldn't otherwise be.

    Sending someone to prison for six months = 1 person thrown in prison.
    Sending someone to prison for life without parole = 1 person thrown in prison...

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

  • giovanni tiso,

    Yes. More people in prison, but not more people thrown in prison.

    Also, we could calmly accompany people to prison instead of hurling them there, in the name of social progress.

    I thought the issue was our rate of incarceration, which surely means how many people are in prison at any one time, not how many people have been in prison during their lifetime?

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Lucy Stewart,

    * incest
    * compelling indecent act with animal

    I find this kind of bizarre. Surely people guilty of these are more in need of intensive psychiatric treatment than 25 years in prison? Especially given that all the various permutations of statutory rape are included separately.

    My major problem with the bill is that it seems intended to make people feel better about crime without actually addressing any real problems. Okay, that and the fact that David Garrett and his posturing about the crime wave we're supposedly drowning in irritates me extensively.

    Wellington • Since Nov 2006 • 2105 posts Report Reply

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