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Is locking more people up for longer the common sense approach to violent crime?

Justice Minister Andrew Little’s dream of repealing the three strikes law is in tatters for now. But is the law working? Philip Matthews reports. 

Former politician and barrister David Garrett wandered into his local tyre-fitting shop one day last summer and saw a young Māori guy there with a Mongrel Mob tattoo on his neck.

Small talk ensued. The young man told Garrett that he had left gang life behind: “I got caught in that f…in’ three strikes law.”

Garrett assumed the man did not recognise that he had been the godfather of the three strikes law during his time as an Act MP and asked him to expand. What followed, Garrett says, was an explanation of how three strikes worked that was as specific as anything a lawyer or legal academic could have told him.

Garrett took a few important things from this encounter. One, that the law is working as intended. Two, that the offenders it targets understood the warnings from judges which acted as deterrents. Lack of education was no barrier.

Of course, Garrett’s many opponents in legal, academic and political worlds may find his anecdote a bit too convenient.

“You’ve just got my word on this,” he says. “Take it or leave it as you wish.”

The three strikes law, or the Sentencing and Parole Reform Act 2010, to use its official title, was a product of the former National Government’s coalition deal with Act. It suggested zero-tolerance tough-on-crime thinking in a catchy, easy-to-grasp way. “Three strikes” may be a US baseball reference but it also sounds like parenting 101: you give two clear warnings and then dish out the consequences.

Peter Meecham

Former Act MP David Garrett, photographed at his home in 2011, thinks the law is working as he envisaged.

It works like this. All 40 violent and sexual offences that come with a maximum of seven years in prison or more are included. First offence means a first warning and sentence. Second offence means a final warning, a full sentence and no parole. Third offence? Maximum sentence and no parole, unless the court decides that would be “manifestly unjust”.

The fact that it was an Act policy softened by National, which insisted on the “manifestly unjust” clause, means that many people assume it is fringe thinking. But tough-on-crime rhetoric is very mainstream.

The Sensible Sentencing Trust, which likes the three strikes law, commissioned polling company Curia to survey opinion. Of the 965 respondents contacted via landline in late February and early March 2018, 68 per cent said they approve of the three strikes law and only 20 per cent disapproved. There were no great differences between genders but those aged 31-60 were marginally more supportive than those older or younger. It was more popular in Christchurch and provincial and rural centres than in Auckland and Wellington.

But it was the political leanings of supporters that really struck Garrett. Seventy eight per cent of National supporters approved of it, but so did 63 per cent of Labour supporters, 66 per cent of NZ First supporters and an amazing 48 per cent of Green supporters.

This reflection of mass opinion cannot be underestimated. When asked what is good about three strikes, Otago University law professor Andrew Geddis, who is personally opposed to it, says “it does seem to match with a public desire to see recidivist violent offenders sentenced more harshly for their crimes.

“In so far as the public does have this appetite for retribution, and a feeling, correct or not, that prison is the safest place to put these people, then the three strikes approach helps to satisfy that,” he says. “And there’s something to be said for the law reflecting what the public wants, given that in the end it is all of our law.”

But the bad? “The public’s gut level feeling about crime and punishment turns out to not actually match what experts and those who study the data seem to tell us.”

In short, just because the public likes a law does not mean the law is working.

HENRY COOKE/STUFF

Justice Minister Andrew Little is determined to repeal the “stupid” three strikes law.

Is three strikes working or not? 

Act leader David Seymour illustrated the gap between emotion and expertise when he told a reporter that outgoing Chief Science Adviser Sir Peter Gluckman displayed “intellectual snobbery” when he called tough-on-crime approaches “populist” and “simplistic” in a 2018 report on the justice system. Seymour asked: “On what basis is his experience and evidence worth more than someone who lost a loved one to crime or had their shop done over?”

Coming just days after Gluckman was widely applauded for bringing evidence and expertise to the debate about meth houses, Seymour’s rhetorical question might seem odd. But it conveys the deep-seated, almost primal, feelings about violent crime in the community.

The context was Justice Minister Andrew Little’s dogged determination to repeal three strikes. Little has called it “an absolutely absurd law” and “the high water mark of policy stupidity”. But without coalition partner NZ First’s overt support, a repeal seems unlikely.

Garrett thinks Little is being “irrational” and predicted that NZ First would be hard to persuade.

But putting emotion and anecdotes aside for a moment, is three strikes working? That depends on how you play with the numbers.

The 965 respondents who answered Curia’s phone call had another question put to them. They were asked the following.

“Since the law came into force in June 2010, there have been 9300 first strike offenders convicted, 257 second strike offenders convicted and two third strike offenders convicted. The Department of Corrections has assessed 85 per cent of the second and third strikers as being at a high or very high risk of reoffending and on average, these offenders have more than 23 prior convictions.

“Does knowing these facts make you more supportive of the law, less supportive or make no difference to your view?”

The statement and question implies that the law is working as it should, by locking bad people up for longer. After hearing that, 47 per cent of those who had approved of three strikes liked it even more. But it made no difference to 37 per cent of those who approved.

There are some numbers Garrett likes to cite. The Ministry of Justice reports that there were 5517 first strike offenders in the five years before the law and 5248 in the five years after. But second strikers dropped from 103 to 68, which may or may not mean that 35 offenders were so scared by their first warning that, like Garrett’s Mongrel Mob member, they straightened up.

For Garrett, that is proof that the law is working as a deterrent: “There is no other programme I’m aware of that has had a 34 per cent reduction. I’ve never heard of anything coming close to 34 per cent.”

Otago University law professor Andrew Geddis sees that three strikes aligns with the public’s gut feeling about crime and punishment.

The deep and irrational

But the Ministry of Justice warns against such a bold interpretation, saying there were changes in policing and prosecution practices and a significant reduction in cases before the courts across those two periods.

“The relationship between legislation and crime is extremely complicated,” says Victoria University sociologist Liam Martin, who argues that the Sensible Sentencing Trust, National leader Simon Bridges and others are “trading in misinformation”.

Martin cites a major study by Michael Tonry​ of the University of Minnesota Law School, titled “Why Crime Rates Are Falling Throughout the Western World”.

New Zealand is not immune. Despite the impressions conveyed by some in politics and media, “New Zealand’s recorded crime levels are the lowest seen since the late 1970s,” as Gluckman wrote in his report in March 2018. Gluckman argued for crime prevention, early intervention and smarter approaches to rehabilitation over building more prisons.

Gluckman added this interesting detail: “It is worrying that, in 2016, 71 per cent of New Zealanders thought crime was increasing.”

Tonry’s article expands on the idea that locking more people up does not affect crime rates. He compared the US and Canada and found that while crime rates were in parallel, the US imprisoned far more people: “Since 1960, the Canadian imprisonment rate has fluctuated around 100 per 100,000 population, while America’s rise from 150 per 100,000 in 1970 to 756 in 2007,” Tonry wrote in 2014.

New Zealand’s imprisonment rate is around 220 per 100,000. The OECD average is 147.

Tonry’s comparison of the US and Canada would seem to say that locking more people up does not reduce crime.

“That’s an arguable point,” Garrett agrees. “I don’t know the Canadian rate but it’s certainly much less than the American.”

He also agrees it is hard to draw direct lines between cause and effect. One can find numbers to support any view.

“That’s right,” Garrett says. “There are so many variables. Violent crime dropped a bit then started to rise again. Who knows what would be happening without three strikes.

“That’s complete conjecture, I admit it.”

Dig down further and it is really about philosophy. Can people who do bad things be redeemed or are they simply evil?

It may be an unfashionable word these days but Garrett took from his reading of Robert Hare, a Canadian expert in psychopaths, that “there are some people who are just evil”.

Good and evil, right and wrong: the argument about three strikes goes to the deep, irrational heart of how we feel about crime, justice and human nature. Garrett sees three strikes as common sense, which has “almost been outlawed in the legal profession”.

But should we base our laws on ideas of common sense? Geddis takes a more complicated view.

“Should the laws we have be the laws that people in a kind of kneejerk, unconsidered fashion think make sense, or should our laws be informed by the best evidence that we have on an issue, gathered by people who have time and expertise to consider the issue in more detail?” Geddis asks.

“Secondly, how should we treat individuals who have committed offences against others? Should we treat them as individuals who are to be judged on the basis of their particular circumstances and we try to do the best to make sure they are reformed and don’t go on to commit more violence or do we treat individuals who do so as a social problem to be disposed of in a way that makes us all feel better?”

Poor old Phil Twyford had quite the week last week. He’s replacing Clare Curran as the minister most likely to get sacked.

In the early days, I was one of the few pointing out that the KiwiBuild program was a farce if not a fraud. The numbers didn’t add up, didn’t come close to adding up. Six months on, I am now one of many who sees this as the charade it was always was.

If you follow the story, you’ll find no shortage these days of commentary from those who have crunched the numbers, seen the shift in the promises, the change in the language, and have come to the inevitable conclusion that this is the policy that might ultimately bring the Government done.

Why? It’s their biggest promise, and it’s been run by a bloke who is a liability

Phone calls on planes goes to personality. It takes a type of person to conduct himself in that fashion, there is a flagrant arrogance about it, a disagreeable self-importance.

He damaged himself further by referring to the ‘kids’ in treasury. The same personality type applies to that level of condescension.

Neither of the offences leads to hanging, but they are a clue, a red flag. What treasury was saying is true; Twyford’s number have had the look of snake oil about them the whole time.

100,000 houses magicked up over 10 years using the same small pot of money over and over. The affordable figure isn’t even remotely affordable, and a figure that’s going up, making it even less affordable

The Government buying stakes in houses, using money they were going to build with because no one’s got the coin to buy them by themselves. No real acknowledgement that the construction sector’s overworked before Phil’s houses even get started, against a backdrop of a promise of 30,000 cut in immigration.

It’s been smokes and mirrors, a classic piece of political puffery dreamt up in an election campaign to fool the economically naive to think a  government can manipulate as large as housing markets with money they don’t have and labour they don’t have with prices they pulled out of a cornflakes packet. The Commerce Commission should be looking at it for fraud.

And the trouble with it all is apart from the fundamentals is the politic bit.  Policies need to be sold. Now, you can’t fault Phil for enthusiasm, but you can fault him for fact, for approach, for attitude, and it’s the attitude, the phone calls, the insults, the telling offs from the leader, that make a virtually impossible job even harder because he’s coming across as a knob.

And the Government can’t afford it’s biggest bit of work to be run a ruin by the sort of bloke who’s fast becoming the most disagreeable man in politics

Can Macs get viruses?

If you’re a Mac user, you get mixed messages about whether viruses and other malicious software pose a bona fide threat. Historically, Mac fans have touted their platform as immune to the kinds of data attacks and other hostile intrusions that plague the Windows world. Apple itself even reassured its customers for years that Macs “don’t get viruses.” It even said so in a series of commercials that first aired in 2006.

While it’s true Macs are more secure than PCs, they’re still vulnerable to viruses, and they always have been. By design, the Mac operating system is more secure against the threat of viruses and malware, but there are still plenty of ways for malware to find its way in. Another thing protecting Macs is the fact that they’re less popular than PCs, but that doesn’t stop some hackers from targeting Macs. Despite this, there are still tech pundits who recklessly advise against taking even basic security precautions, such as installing a cybersecurity program.

In the last few years, a growing number of active threats have targeted the Mac operating system. In fact, Malwarebytes saw more Mac malware in 2017 than in any previous year. By the end of 2017, the Malwarebytes intel team counted 270 percent more unique threats on the Mac platform than in 2016. What’s more, Apple’s current strategies may not be enough to stop the rising tide of Mac viruses and malware. Look into the history of threats to Macs, and you’ll see that even early on, the so-called “Mac invulnerability” was a myth. It makes you think twice about wandering around cyberspace on your Mac without taking precautions. (For further reading, see “Mac security facts and fallacies” by Thomas Reed.)

The latest Mac malware news

The state of Mac malware
Interesting disguise employed by new Mac malware HiddenLotus
Mac malware OSX.Proton strikes again

A short history of Mac attacks

The first widespread Apple virus was called Elk Cloner. It was created by a 15-year-old high school student in 1982, and it targeted Apple II computers. Disseminated by infected floppy disks, the virus itself was harmless, but it spread to all disks attached to a system. It proliferated so quickly that many consider it the first large-scale computer virus outbreak in history. Note that this was prior to any PC malware.

The first virus that targeted Macintosh computers, nVir, emerged in 1987 and remained a problem until 1991. It infected executable files on Macs, causing system issues like printing problems, application crashes, and slow response times. Compared to today’s malware that steals your identity or spies on you remotely, nVir’s annoyances seem quaint.

Apple’s switch to a completely new architecture in 2001 helped squash such nasty bug invasions, but malware for OS X started to appear a few years later. Since roughly 2012, the number of Mac threats have seen a huge upswing. These threats include malware like spyware, keyloggers, backdoors, and more. It also includes Mac adware, and potentially unwanted programs (PUPs). All of these contribute to an increased risk for Macs. Even the Mac App Store has suffered a tidal wave of scam software. Go to any Mac forum these days and it won’t take you five minutes to find someone suffering from some kind of malicious threat.

Even as the first Mac virus threats appeared, they inspired counter measures. The first Mac antivirus programs were created in 1987 in response to nVIR and variants of nVIR. In addition, those of us sufficiently long in the tooth might even remember one of the most popular early Mac antivirus programs—a free utility named Disinfectant, released in 1989.

OS X security measures

Aware of the problem, Apple eventually replaced the classic Mac operating system with the new Mac OS X, which came with built-in malware security measures. For instance:

• Quarantine, introduced in 2007, alerts users if they try to open applications downloaded from the Internet. It acts as a reminder, in effect prompting users to think twice before clicking—even if it’s a benign program. But Quarantine is useless against executable programs that download and launch by exploiting vulnerabilities in your browser, executing the so-called drive-by download.
• Xprotect, added in 2009, prevents malware from being opened, but only if it carries a known signature from an ever-changing universe of malware programs. This means you have to keep updating the signature database to stay ahead of the latest threats. If that database lags behind, the bad guys get ahead.
• Gatekeeper, which appeared in 2012, only allows installation of applications from the Mac App Store and its identified developers who have “signed’ their code. However, the modest fee to register as an identified developer, bad guy or not, presents a low barrier to getting around Gatekeeper. In other words, Mac malware often comes signed nowadays, so it looks legit to Gatekeeper.
• There is also Malware Removal Tool, which removes known malware but only after infection, and only at certain times, such as when the computer restarts.

While these measures by Apple help lower the user’s risk, they’re not really sufficient. There are ways to bypass them, and they don’t block or detect all threat types.

Who do Mac viruses and other malware target?

The answer to that depends on the malware. Mac adware and Mac PUPs most often go after the average user, based on the assumption that Mac users are well-to-do and worth the effort. Other malware deploys in a targeted manner, such as nation-state malware, which goes after specific individuals or small groups.

Another likely vector is the developer community itself. In this sort of attack, often called supply-chain attacks, the hackers concentrate on breaching a developer’s server, allowing them to insert themselves in some part of a process between the writing and delivery of the app to users. Some time ago, a particularly widespread hack of this sort placed an infected copy of Xcode (a suite of Apple software development tools) on a developer’s servers, which subsequently affected tens of thousands of iOS apps. Once it was discovered, Apple went in and shut down all the infected copies of Xcode. (For further reading, see “XcodeGhost malware infiltrates App Store” by Thomas Reed.)

Is my Mac infected?

How do you know if your Mac has a malware infection? Look for such clues as:

• You land on a web page you’ve selected, and advertising banners start to intrude on you aggressively.
• You notice that random web page text suddenly has a hyperlink.
• Browser pop ups get in your face, earnestly recommending fake updates or other fake software.
• You notice other unwanted adware programs, which you did not authorize or which were installed without your knowledge.
• Your Mac crashes, heats up, or runs its fan faster than normal for no apparent reason. It may be working on an intensive task because of a cryptocurrency miner on your system, most likely installed by a Mac Trojan.

If you see any of the above, or other strange behavior, then it’s high time you got yourself some cybersecurity protection. Furthermore, though the general consumer may consider cybersecurity synonymous with the term “antivirus,” the more accurate designation should be “anti-malware,” a catch-all term that describes all malicious software, regardless of type. For example, viruses and Trojans are two specific types of malicious software, both of which are malware. The fact is, viruses are much less of a thing today, largely because there are far easier ways to infect Macs with Trojans, worms, spyware, and ransomware. (For further reading, see “How to tell if your Mac is infected” by Wendy Zamora.)

So how do I protect myself against Mac malware?

First of all, don’t fall for the hype. There’s nothing implicitly safer about a Mac except for the rarity of threats compared to Windows. As the Mac threat landscape continues to expand, most Mac users aren’t prepared for it, continuing to think they’re safe simply by virtue of using a Mac. This puts Mac users at higher risk of getting infected with something nasty.

Secondly, always remember the “if it’s too good to be true” rule. If you get a perky pop up offering something free, put on your skeptical face and don’t touch that mouse. This often happens on risky websites, so it’s best to avoid them. If you look at the status bar at the bottom of your browser, it’ll usually show you the true URL of the site you’ll go to if you follow the link you’re mousing over (without clicking). Pay particular attention if the domain ends in an odd set of letters, i.e., something other than com, org, edu, or biz, to name a few. This may indicate it is a viper’s nest for malware.

Also, keep your software up to date, whether it’s the operating system, browser, or just about any program you frequently use. That way, you’ll avoid any malware that seeks to exploit any bugs in the code.

Remember, you are your own first line of defense, so stay vigilant. Beware of unsolicited email attachments and software from untrustworthy websites or peer-to-peer file transfer networks.

Finally, install a Mac cybersecurity or anti-malware program from a reputable vendor. This will protect you from malware that makes it past your good cybersecurity habits.

What to look for in a Mac cybersecurity (“antivirus”) program

What should the enlightened Mac user look for in a cybersecurity program?

• Comprehensive, layered protection. It should be able to scan and detect viruses, as well as maintain proactive real-time defense against malware. The goal is to catch dangerous threats automatically, before they infect your Mac. This way, you don’t have to stress about it or rely on manual scans.
• Detection of adware and potentially unwanted programs (PUPs). These annoyances can lurk on your machine, slowing down your Mac. You want security software that finds and quarantines them.
• Remediation. After removing the threats, remediation corrects system changes, regardless of severity. This allows you to return to the machine’s “desired state.”

Of course, it’s best to have comprehensive protection before something—malware or otherwise—infects your Mac. If you do take a hit, hit back by downloading Malwarebytes for Mac, run a scan, and rest easier. It zaps and continues to block malware. It detects and quarantines adware and PUPs too, and it does it all with a low impact on system resources, so you don’t get bogged down. It can even recognize when new threats appear to be similar to the signatures of previously identified threats, providing protection against new, unidentified threats (zero-day).

Here’s your takeaway: Even on a Mac, safe computing is a matter of vigilance. Avoid opening unsolicited email attachments or downloading software from untrustworthy websites or peer-to-peer file transfer networks. Keeping security in mind can go a long way toward keeping you safe from some online threats, but not all of them. This is why a good Mac cybersecurity program is essential.