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Three Strikes hit the wrong roots

Three strikes hit- Dr Richard Ekins.jpgThe New Zealand Parliament passed the ‘Three Strikes Law’ in May 2010.

In what was stated as the first case since the enforcement of the new law, an Upper Hutt Court recently delivered a verdict on a 32-year-old man convicted of indecent assault and groping his friend’s partner under the influence of alcohol.

The Judge warned the man that if he committed another one of the 40 offenses captured by the ‘Three Strikes Law,’ he would be facing a sentence without parole.

In their joint paper and later at lectures on the subject, Professor Warren Brookbanks and Dr Richard Ekins of the Faculty of Law at the University of Auckland said the law had the potential to lead to unfair and distorted sentences.

“The Three Strikes Law is not the appropriate way to achieve this and will likely result in more minor offenses being unjustly punished,” they said.

In their Guest Paper presented to the Maxim Institute in April, they argued against the Three Strikes regime.

“The Bill imposes mandatory consequences on certain repeat violent offenders. There is no dispute that serious, repeat violent offenders deserve serious punishment; public concern about such offenders is justified. However, the Bill will not achieve its objectives and is likely to punish many more minor offenders unjustly,” they said.

According to them, the legislation lists over 40 qualifying offences. On a first conviction for a qualifying offence, (strike one), the court issues a first warning to the offender. On a conviction for a qualifying offence committed after a first warning (strike two), the court issues a final warning and the offender is ineligible for parole.

Three strikes hit-Professor Warren Brookbanks.jpgProfessor Brookbanks and Dr Ekins said a conviction for a qualifying offence committed after a final warning (strike three) has two consequences.

First, the court has to sentence the offender to the maximum for that offence: this is mandatory. Second, the offender is not eligible for parole unless the court is satisfied that this would be manifestly unjust.

“The Bill departs from the central principle of just sentencing, which is proportionate response to wrongdoing. The “three strikes” regime, to some extent on strike two and especially on strike three, ignores the nature of offences, which include conduct that ranges from the relatively minor to the very serious.

“The regime ignores almost all the aggravating and mitigating factors relevant to assessing the relative gravity of a criminal wrong. The application of the regime, especially at strike three, will often be unjust. Specifically, the regime will often impose grossly disproportionate punishments on relatively minor offences.

“It will also fail to distinguish relatively minor and very serious offences, which is unjust to victims as well as to offenders,” they said.

The application of the regime is unlikely to deter would-be offenders in general, or the offender with one or two strikes in particular, they said.

There is no need to cancel eligibility for parole to establish that parole is a privilege and not an entitlement.

Cancelling eligibility for parole for all second strike and most third strike offenders will not deter offenders but will undermine incentives for prisoners to reform or to refrain from further offending in prison, they said.

“The regime will remove the incentive for offenders facing a strike three conviction to plead guilty (or to cooperate with authorities), which will sharply increase trial costs and impose unnecessary trauma on victims.

“The regime has a substantial fiscal cost, which would be better spent on (among other things) victim support, intensive policing, and improving parole supervision.

“There are more effective and promising ways to address recidivism, which include increased use of existing sentences such as preventive detention, principled reform of parole eligibility,” Dr Ekins said.

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