Posted by: Ananish Chaudhuri
It is not clear that National’s support for enhanced punishment of repeat offenders under a ‘three strikes and you’re out’ legislation is based on a careful sifting of the available evidence and deliberation. If the aim is to reduce violent crime, then such mandatory sentencing may not be an effective way of achieving that.
In the United States - where Washington and Wisconsin were the first states to adopt a ‘three strikes’ law in 1993 - the State that has systematically and strictly enforced the ‘three strikes’ statute is California. California has used the law broadly to cover pretty much all felonies.
California has also allowed limited judicial discretion preventing judges from circumventing the law in those cases where its application seemed uncalled for, such as for non-violent felonies. As of 2000, more than 40,000 offenders have been sentenced under the ‘three strikes’ legislation in California. No other State has even reached 1000.
Armed with those statistics, you have to ask...does the law work in preventing violent felonies? Surprisingly, there is very little evidence to answer this in the affirmative. A 1994 study commissioned by the Rand Corporation found huge costs and limited deterence from this law change requiring mandatory sentencing for a third offence.
In an article published in the Stanford Law and Policy Review in 1999, Mike Males and Dan Macallair compared California counties with ‘strict’ versus ‘lax’ enforcement of the law, and concluded that counties that strictly enforced the enhanced sentencing guidelines saw negligible effects on crime rates.
Thomas Marvell and Carlisle Moody’s 2000 article, published in the Journal of Legal Studies - a leading scholarly journal - undertook a cross-state analysis and found that ‘three strikes’ laws have little effect on overall crime rates. Moreover, a recent study by Radha Iyenger of Harvard University suggested that ‘three strikes’ laws may have a wholly unintended consequence of increasing the incidence of violent crime.
Using data from California, Iyenger reported both good and bad news. She found that ‘three strikes’ legislation reduced participation in criminal activity by 20 percent for second-strike eligible offenders and by almost a third for third-strike eligible offenders. But, because the California law is non-discriminatory in that a wide variety of felonies will attract the ‘three strikes’ penalty, Iyenger found that criminals were much more prone to committing more violent crimes as their third-strike offence.
The rationale is not difficult to understand. If you do participate in a third-strike eligible criminal act, then it no longer matters much whether you commit a violent felony or a non-violent felony, because in either case you would be looking at a mandatory 25 years-to-life sentence. There is no strong incentive to avoid violence in the course of committing a third offense.
California’s Proposition 184, which brought the ‘three strikes’ law into existence, was approved by more than 70% of the State’s voters. Yet, in 2004, opponents of the law put a measure on the ballot – Proposition 66 – that would have required the triggering third offense to be a serious or violent crime. This proposition was defeated narrowly by a 53% to 47% margin, demonstrating widespread dissatisfaction with the way the law is applied.
Following the defeat of Proposition 66, the District Attorney of Los Angeles County has now taken up a drive to soften the law, an effort that is supported by the Sheriff of Los Angeles County and the police chief of Los Angeles.
Under the proposed revision, a criminal would typically be subject to the mandatory ‘three strikes’ law only if the third strike is for violent or serious felony, although in some cases the mandatory sentence may apply for a minor felony such as drug possession or petty theft only if that particular criminal has already been convicted of a serious felony in the past.
But in many cases, where the third offense is a relatively minor felony, this will not attract the mandatory sentence under the ‘three strikes’ law. This revision then will also reinstate a measure of judicial discretion that was missing from Proposition 184.
It is obvious that California, the one State that has applied the ‘three strikes’ law most systematically, is now questioning its effectiveness. Under the circumstances, one would hope that the National Party would engage in much greater consultation before implementing such a drastic change in current sentencing guidelines, especially in light of the fact that New Zealand already has relatively high rates of incarceration per capita.
There must be other more innovative ways of dealing with recidivist offenders than borrowing a policy from the United States which does not seem to have worked in the first place. Is there any particular reason to believe that it will work any better here in New Zealand?