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.

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.

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.”

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?”