Some people will be serving extended Three Strikes sentences even after the law is repealed. Photo / Rattankun Thongbun
Since its inception, it’s safe to say the Three Strikes law has faced its fair share of criticism.
Academics have condemned it for promoting penal populism and disproportionately targeting Māori and Pasifika communities.
It’s also faced scrutiny over its role in disproportionately harsh sentences that do not match the seriousness of the crimes committed.
Prime Minister Christopher Luxon has set out to restore Three Strikes in his Government’s next action plan. The aim is to have it back in action by June 30 this year “to hold serious, repeat offenders to account”.
While the law was always intended to deter repeat offenders with the threat of progressively longer mandatory prison terms, it’s forever been marred by concerns that there was little evidence it had reduced serious offending.
Auckland University of Technology criminal law professor Warren Brookbanks told The Front Page the evidence on whether it works is inconclusive at best.
“It was designed to target ‘the worst of the worst’, but sadly, it’s targeting the ‘most predictable of the most predictable’,” Brookbanks said.
“They’re probably young men, from about 25 years old, predominantly of Māori or Pacific ethnicity, who - probably under the influence of alcohol or other drugs - committed a strike offence.
“It gives the political party in power the ability to say it’s being ‘tough on crime’. But, the problem is: the evidence simply isn’t there.”
Brookbanks also thinks the idea of a judicial warning itself is a very middle-class concept.
“Many of these people committing these offences are themselves victims of trauma in their background. They’re accustomed to violence in relationships. And they’re not going to stop, especially if they’re fired up by alcohol and drugs, and think, ‘Oh dear, I might get a second strike for this’. It’s just simply unrealistic.”
The law was introduced by way of the Sentencing and Parole Reform Act 2010 as part of the National Party’s broader agenda to address issues within the criminal justice system. It was a policy driven by the Act Party as a support partner of the National-led coalition Government.
In December 2018, the Ministry of Justice published an evidence brief that considered the impact of the regime on crime rates in New Zealand.
It found that changes in the rates of sexual assault, robbery and serious assault (which made up more than 90 per cent of strike offences) could not be easily attributable to the law.
It also found no clear indication that the Three Strikes legislation deters individuals from committing qualifying offences.
In several cases, judges expressed concern about being required to impose disproportionately severe sentences when there have been mitigating circumstances for the offending, such as mental health issues.
In 2022, Labour fulfilled its 2017 campaign promise by passing the Three Strikes Legislation Repeal Act. It came after the party’s first attempt, in its first term, was blocked by New Zealand First.
At the time, Carrie Leonetti, an Associate Professor at the University of Auckland Law School and a former criminal defence lawyer from California, went as far as to say it had been a ”failed experiment”.
Meanwhile, in January this year, Act’s Todd Stephenson said the average Three Strikes offender had 75 convictions and just 24 people were sentenced to a Third Strike.
He maintained the law is for “the worst of the worst”, with the total number of people sentenced to a first, second or third strike accounting for just 1 per cent of the people sentenced in our courts.
One of those with three strikes was a mentally ill man who was handed down a seven-year prison sentence for trying to kiss a stranger on a Wellington street without her permission.
When Daniel Clinton Fitzgerald was initially sentenced, Justice Simon France pointed to the defendant’s years-long struggle with schizophrenia and acknowledged that such a crime would not usually result in prison time.
The Supreme Court ultimately rejected it - describing his maximum sentence as one that “shocks the conscience”.
So, does Three Strikes only stand as a symbol of a government’s “tough on crime” approach? Or will it garner better results a second time around?
As the old saying goes: “If at first you don’t succeed - try, try again.”
Listen to the full episode to hear more about the controversial Three Strikes legislation and what else could be done to deter the “worst of the worst”.
The Front Page is a daily news podcast from the New Zealand Herald, available to listen to every weekday from 5am. The podcast is presented by Chelsea Daniels, an Auckland-based journalist with a background in world news and crime/justice reporting who joined NZME in 2016.
You can follow the podcast at iHeartRadio, Apple Podcasts, Spotify, or wherever you get your podcasts.
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