Will Three Strikes reduce crime? There’s a reason Christopher Luxon can’t point to evidence. It doesn’t exist

Prime Minister Christopher Luxon and Associate Justice Minister Nicole McKee arriving at the Beehive theatrette before announcing the Govt is to bring back the three strikes law. Photo / Mark Mitchell

ANALYSIS

“If it saves one person from that trauma [of being a victim of a Three Strikes crime], that is a good thing,” Prime Minister Christopher Luxon says.

This is easy political ground to preach from because it’s a popular policy, the governing parties all campaigned on bringing back the controversial law, and no-one is going to argue against less violent or sexual crime.

That latter point is also unknowable, which means any challenge to Luxon can be dismissed or counter-challenged.

This was apparent during yesterday’s press conference, when Luxon couldn’t point to any evidence that Three Strikes 2.0 will reduce crime. There’s a reason. There is none.

This is not the same thing as saying it can’t, or won’t, reduce crime.

But to know for certain would require comparing what will happen under 2.0 to what would have happened without it, while attributing differences between the two to the new law.

The crystal ball looking into the future and an alternative future would also need to see lifetimes ahead.

The new law will put more people behind bars than otherwise, where they can’t threaten public safety. But unless they’re serving non-parole life sentences, they’ll be released at some stage and be more likely to re-offend.

How do these two pathways compare in terms of crimes over their lifetimes, as well as the lifetimes of those they influenced, such as children caught in a cycle of intergenerational violence?

It’s no surprise that the Ministry of Justice’s evaluation of 1.0 was inconclusive: “It is not clear that the Three Strikes law has increased public or victim safety, and there is no evidence that continuing to limit judicial discretion and availability of rehabilitative opportunities in these cases will aid in reforming offenders or reducing serious crime”.

A ministry evaluation in 2018 also noted “no distinct indication” of any deterrence effect, while convictions for Three Strikes offences hadn’t shrunk after the law came in.

Luxon pointed to California, but crime rates there were falling before Three Strikes was introduced. An academic analysis on California’s experience found “little consensus” about the impact of Three Strikes on public safety, “even after more than 10 years of application”.

He also pointed to the increase in recorded violent crime in recent years, as if there’s any way of knowing whether dumping Three Strikes 1.0 in 2022 contributed to that - or even whether recorded crime numbers reflect an actual increase in crime.

Three Strikes 2.0 is estimated to put up to 90 more people in prison over the next 10 years. Photo / 123rf

An improvement? What’s new in 2.0

What can be predicted is that far fewer people will be captured by 2.0 than if 1.0 were resurrected.

That’s because of a new strike threshold of a 24-month prison term. Previously it was only a conviction for any of the qualifying offences, which include all major sexual and violent crimes.

The threshold will prevent the kinds of third-strike sentences under 1.0 that, according to judges, “would have shocked the conscience of properly informed New Zealanders”: a seven-year sentence for kissing a woman in the street, or for rubbing the back of a woman, or for grabbing a prison officer’s butt cheek.

It’s a much lower bar than the five-year threshold that was proposed for 1.0, and eventually scrapped. The five-year threshold would have led to an estimated 132 additional prisoners over the following 50 years, much fewer than the current estimate of up to 90 more prisoners after 10 years (at an annual cost up to $10.7 million after 10 years).

It’s doubtful the new threshold will make any difference to a deterrence effect; criminologists note the severity of punishment has no such effect anyway, while there’s a small effect if there’s a high likelihood of getting caught. White-collar fraudsters are much more likely than Three-Strikes’ offenders to think twice about doing the crime.

Qualifying offences will be expanded to include “strangulation or suffocation”, which was part of a package to prevent family violence five years ago.

Strike three offenders will also be eligible for a 20 per cent discount (less than the standard 25 per cent) if they plead guilty. There was no such incentive under 1.0, so the default was to plead not guilty and further drag out court processing times.

What we still don’t know

The judiciary used the “manifestly unjust” clause to tame Three Strikes 1.0 by allowing for parole in any strike two sentence - even though the wording of the law made no provision for this.

The phrase will also be part of 2.0 but it’s unclear how beyond, in Associate Justice Minister Nicole McKee’s words, allowing judges to “avoid very harsh outcomes and address outlier cases”.

This means there will still be some judicial wriggle room in 2.0. Whether this will lead to more appropriate sentences or, as Act leader David Seymour puts it, “judicial activism” will be in the eye of the beholder.

Luxon won’t care as long as he can say that it’s led to reduced crime and better public safety.

Even though that cannot be proven with any certainty.

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.