As you may have gathered, I am not a fan of the Three Strikes legislation, and am happy about its imminent repeal. But, well, the New Zealand National Party has now pledged to restore this nonsense, which means another rant.

Presumably, National’s decision has a fair bit to do with their internal polling on the matter. Their polling, by the way, is done by this lovable chap:

Oh wait. I meant this guy:

(Believe me. It’s an easy mistake to make).

David Farrar not only does internal Tory polling, he also runs their online propaganda wing… sorry, I meant New Zealand’s largest and most prominent right-wing blog.

Farrar has concluded that a repeal of the law would be electorally suicidal (hence his paymasters’ sudden embrace of what used to be ACT Party policy, rather than their own). His reasoning is threefold:

(i) The law is popular, as per his polling on the subject.

(ii) The Government will carry the blame for any offending that takes place from “second strikers” after their release.

(iii) It won’t affect the overall prison population.

Now let me address these arguments in turn.

(i) Vox Populi

Farrar’s polling questions read as follows:

Since 2010, New Zealand has had a ‘Three Strikes’ sentencing law for serious violent and sexual offenders who continue to commit offences. This law removes parole eligibility for repeat offenders and imposes the maximum prison term available for the offence committed, for those who offend a third or subsequent time. Do you approve or disapprove of this law?

Since the law came into force in June 2010, there have been 9,300 first strike offenders convicted, 257 second strike offenders convicted and two third strike offenders convicted. The Department of Corrections has assessed 85% 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?

Now, I think you can see the problem here. The questions are leading as hell. “Serious violent and sexual offenders”… “high or very high risk of reoffending…” Cue pearl clutching… it’s the sort of emotive language one sees from the National Rifle Association in the United States when they’re trying to convince the public to buy firearms. It’s also the sort of language the Three Strikes Law itself uses, because the law itself is all about emotion, rather than logic or evidence.

You see, when a random person in the street thinks of “serious violent offences”, they have a quite clear image of the offences in their mind. Murderers, rapists, armed robbers terrorising people in their homes, et cetera. If you ask a random person on the street if one ought to be tough on these crimes, of course they are going to approve.

However, when you actually try to write a law for this, you run into the difficulty that not all these serious crimes are equally serious. Indecent Assault can mean anything from a breast squeeze or a bottom pinch, all the way up to rape. It’s an enormous range of potential offences, covered by two simple words… and, well, the effect of the Three Strikes Law is to remove discretion from judges when dealing with this range of offences. The law basically lists the crimes, and tells the judiciary to hop to it… which the judges themselves hate.

To take an example, the very first case of a third strike under the law occurred in 2016, when a prisoner got seven years for pinching a prison guard’s bottom. The judge himself stated that without the law, the sentence would not be more than 12 months… and as for the legal fraternity, the Criminal Bar Association was scathing. It goes without saying that these are the people at the coalface of the law, the people who actually see the Three Strikes idiocy first-hand.

Were Farrar to ask the question of “should someone serve seven years in prison – longer than some rapists – for pinching a bottom?” I suspect his polling result would be very different. New Zealanders have a deep-seated notion of fairness, after all.

(ii) The Government getting the blame

Farrar thinks he’s onto a winner with this one. Aha – a hypothetical rapist on their second strike (so nine years without parole), who is paroled after the law’s repeal, then reoffends. That’d be the Government’s fault!

Well, no. Parole is not automatic, and Parole Boards (obviously) consider the chances of a person reoffending in making their decision. The point is that the Boards would, once again, have discretion depending on the case – and if they make a mistake, it’s at their door. Giving the Boards discretion does not make the Government culpable.

To further illustrate the stupidity of Farrar’s reasoning, suppose all prisoners were sentenced to life in prison without parole for committing any crime whatsoever. This would guarantee no-one ever reoffends. Then suppose a subsequent Government repealed that law, so sentences once again reflected severity of an individual offence. Should the Government then be blamed for any reoffending that does occur? If so, would Farrar be insisting that all crimes ought to automatically attract life in prison? Is he and the National Party willing to tolerate that level of injustice, just for political convenience?

(Wait. Don’t answer that).

(iii) The prison population

Farrar notes that there are comparatively few people currently in prison because of the Three Strikes Law, so repealing it won’t do much in terms of reducing the prison population.

He’s quite correct here.

The reason the Three Strikes Law doesn’t apply very often is because judges and lawyers realise how toxic it actually is… and find ways around it. Has Farrar ever noticed that on the three occasions a third strike has occurred, the judge invariably declares the required sentence “manifestly unjust”? There’s a reason for that.

Meanwhile, Farrar is ignoring the basic argument here – repealing the Three Strikes Law is not about reducing the prison population. It is about restoring consistency of sentencing, and avoiding injustices like “seven years for a bottom pinch.” Prison populations are a red herring.

David Farrar knows this, of course. No-one ever accused the Penguin of being stupid. He and his paymasters have just decided that stirring up emotional Tough On Crime nonsense is politically advantageous to the National Party – and, well, explaining the reality of the situation is too complicated and boring for a New Zealand news media that thrives on sensationalist nonsense, so they might actually be correct in their assessment. Doesn’t make it morally right though, and it sure as hell has nothing to do with justice.