Ananish Chaudhuri: Throw three 'strikes' out of the ballpark

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It was primarily David Garrett and the Act Party, rather than National, who were instrumental in pushing the "three-strikes-and-you-are-out" legislation. Now that serious questions have been raised about Mr Garrett's judgments, maybe we should also reconsider the soundness of the law supported by him.

In the United States, the State that has systematically and strictly enforced the "three strikes" statute is California, which 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 the year 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 whether the law actually succeeds 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 deterrence from this law change requiring mandatory sentencing for a third offence.

A study by Mike Males and Dan Macallair published in a scholarly journal in 1999 compared California counties with "strict" versus "lax" enforcement of the law, and concluded that counties that strictly enforced the three strikes law saw negligible effects on crime rates.

In 2000, Thomas Marvell and Carlisle Moody undertook a cross-state analysis and found that three strikes laws had little effect on overall crime rates. Their results were published in a leading scholarly journal.

Moreover, a recent study by Radha Iyenger of Harvard University suggests that three strikes laws might 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 per cent 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 offence. California's Proposition 184, which brought the three strikes law into existence, was approved by more than 70 per cent 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 offence to be a serious or violent crime.

This proposition was defeated narrowly by a 53 per cent to 47 per cent margin, demonstrating widespread dissatisfaction with the way the law is applied.

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 offence is a relatively minor felony, this will not attract the mandatory sentence under the three strikes law.

This is the version of the law that we are proposing to implement in New Zealand. In order for a person to be convicted under this law, the third offence must be a "strike eligible" one.

But notice that this does leave scope for prosecutorial and judicial discretion.

In that case why not now let the judges and the prosecutors decide the whole thing, rather than imposing mandatory sentencing and tying their hands?

Given New Zealand's already 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?

Garth George's column is not appearing this week.

Ananish Chaudhuri is professor of experimental economics at the University of Auckland Business School.