Graeme Edgeler: Three Strikes five years on - now with accurate numbers!

A month ago, I retracted a piece I wrote in 2015 looking at the first five years of the three strikes sentencing regime for serious violent crime, attempting to see how the first five years after three strikes compared to the five years before three strikes.

As detailed in that retraction, the comparisons I then made were invalid. The two sets of data I was comparing were not comparable. I now have this data, following contact by the Ministry of Justice after my retraction (and Nikki Macdonald’s excellent work in the Dominion Post) was published, and the Ministry apologised for falling short of the high standard they set for themselves, and offered to provide comparable data if I still wanted it.

The comparison between the years before and after the coming into force is less stark, but there remains a reduction in strike recidivism beyond that in strike crime generally. The extent to which this fall can be attributed to three strikes remains anyone’s guess.

In the first five years after three strikes came into effect 5248 offenders received a ‘first strike’ (that is, a “stage-1 conviction” under the three strikes sentencing regime), and 68 offenders received a ‘second strike’.

In the five years prior to three strikes, 5517 people were convicted of an offence where that conviction would have been a ‘first strike’ had three strikes been in force at the time, and 103 were convicted of an offence that would have been a ‘second strike’.

In addition, no-one was convicted of a third strikes in three strikes’ first five years, while four people were convicted of what would have been third strikes in the preceding five years, and two of them also racked up what would have been fourth strikes.

The bald numbers provide no evidence that the existence of formal strike warnings has a deterrent effect, and arguments about what caused. Though the numbers are low, the lack of third and fourth strikes could well be a consequence of incapacity, rather than deterrence – a second strike conviction means the offender is ineligible for parole, so result in longer times spent in prison.

In its response to me, the Ministry cautions against firm conclusions:

“Please note that although this data shows that reoffending has reduced since the Act came into force, there are several factors affecting numbers of convictions and hence people convicted over the 10 year period in question. These include changes in policing practices (for example, the Policing Excellence Scheme: www.police.govt.nz/about-us/programmes-initiatives/policing-excellence), an overall reduction in crime and a reduction in the number of people prosecuted and convicted from 2009 to 2014. This means that any reduction in offending cannot be solely attributed to the Sentencing and Parole Reform Act 2010.”

We’re now at the level where alternative explanations become more likely. Our first third strike (for offending leading a conviction since the five year period of comparison) is instructive. Raven Campbell was convicted of an indecent assault committed on a prison guard. A conviction for a crime committed in prison was always likely to be the first third strike. Few prisoners convicted of serious sexual or violent crimes will have had the opportunity to have committed a strike offence, been convicted and sentenced (probably to prison) then paroled, to be convicted of a new crime committed after the first, then serve every day of a second strike sentence (for which there is no possibility of parole) before being released involving to commit further serious offending, all within five years.

In addition to the Policing Excellence scheme suggested by the Ministry of Justice (in part, it created a greater Police focus on prevention), any number of other alternative explanations for reductions in recidivism rates for serious violent crime within five years of first conviction: random variation in offending levels, longer sentences for serious offending; changes to parole laws, or to the approach of the New Zealand Parole Board to parole decisions among others. are possible explanations for reductions in recidivism rates within five years of first conviction. We’ve also seen the rollout of extended supervision orders for child sex offenders, which started in 2004 (although child sex offences make up only a small proportion of serious violent crime, and tend to have low recidivism rates).

Establishing whether something like three strikes has had an effect on recidivism rates, or offending rates is hard. The bald numbers tell us little. It is something that could be investigated further, but would need the type of resources I do not have, and I suspect would also research agreements to enable access to information that would be otherwise be withheld under the OIA for reasons of personal privacy. Mostly, I’m just here to point out the problems with others’ arguments. Too many arguments about criminal justice focus on rhetorical effect, or run the risk of falling away when the crime rate changes by a little (if you’re on Twitter, follow Fordham Professor John Pfaff):

Minor hope for 2017: never again see “prison down, and so is crime” arg based on trends. Bad causal reasoning, ticking time bomb for reform. https://t.co/seATkZAO6q

— John Pfaff (@JohnFPfaff) December 30, 2016

I can’t take this much further, but there are some other slightly noteworthy notings from the recent OIA releases.

In explaining why it is difficult to come up with comparable data, the Ministry of Justice noted:

Under the Act, warning may be given either when guilt is established (which is usually when the conviction is entered) or at the sentencing date. However, as the time of the giving the warnings is at the discretion of the judge, it is impossible to estimate the timings of when warnings would have been given pre the implementation of the Act.

This accords with how I’ve seen the Act occasionally work in practice – warnings sometimes aren’t given upon conviction, but this isn’t a correct statement of the law. Section 86B of the Sentencing Act is clear:

86B Stage-1 offence: offender given first warning
(1) When a court, on any occasion, convicts an offender of 1 or more stage-1 offences, the court must at the same time—
(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning…

When a warning is given is important, because an offence will only receive a higher-level warning (with the consequent parole and sentencing effects) if it is committed after the warning was entered. It will not be common, but there will have been instances where a defendant has avoided more serious strike consequences because a judge has exercised the discretion as to timing that the Ministry of Justice says they have.

In news from a wholly unrelated OIA request I made of the New Zealand Defence Force earlier in the year, I can confirm that former Navy Commander Philip Wiig, who was convicted at a Court Martial of an indecent assault, did not receive a first warning when he was convicted, or sentenced. Although indecent assault is classed as a “serious violent offence” under the Sentencing Act, not all parts of the Sentencing Act apply to Courts Martial, and the three strikes bit is one part that doesn’t. This would apply even if they charge faced was more serious: no conviction at a Court Martial has strike consequences. Now, I oppose three strikes, but I can’t see a particularly good argument that someone with a conviction for a strike offence following a Court Martial should be in a better position if subsequently convicted for further serious offending (whether in a civilian court, or a military one).

Far from the biggest deal, but I like my laws to be consistent where possible, even when I oppose them.

Graeme Edgeler is a Wellington barrister with an interest in electoral and constitutional law. This article was originally published on the Legal Beagle blog at http://publicaddress.net/legalbeagle/three-strikes-five-years-on-now-with-accurate/.