Abstract
Habitual felon legislation is not new, but during the last 20 years it has become a powerful instrument of penal populism. Since passage of California's landmark 1994 three-strikes initiative, more than 100,000 offenders have been incarcerated in that state, contributing to prison crowding so serious that, in 2011, in Brown v. Plata, the United States Supreme Court ordered California to reduce its prison population by 46,000 persons. While the Californian three-strikes law is unusually draconian, habitual offender legislation also has been enacted in Australia and, more recently, in New Zealand. While little official data are available about New Zealand’s three-strikes law, preliminary analysis indicates that minority groups are overrepresented in the three-strikes population, and that three-strikes demographics resemble those of the New Zealand general prison population.
Although New Zealand’s crime rate is not unusually high, being roughly comparable to rates reported in England and Wales (Lynch & Pridemore, 2011), the country incarcerates disproportionate numbers of its citizens: 192 per 100,000. Indeed, among the 34 OECD nations, New Zealand places seventh in incarceration rates, 1 trailing only the US (716), Chile (266), Estonia (238), Israel (223), Poland (217) and Mexico (210) (Walmsley, 2013). Although New Zealand is widely considered to be a socially progressive nation, Pratt (2006) has persuasively argued that the country is actually highly punitive. He notes, for example, that in the 1999 general election, 91.75% voted in favour of the citizen-initiated referendum, ‘Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution, and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?’ (Pratt, 2008: 370). 2 In light of New Zealand’s enthusiasm for punishment, it may be unsurprising that on 25 May 2010, the country passed a three-strikes law modelled upon California’s 1994 notorious 25-to-life three-strikes initiative (Brookbanks, 2012). California’s law, however, has produced unintended consequences and should serve as a cautionary tale for other jurisdictions contemplating such legislation. Although only three years have passed since New Zealand implemented three-strikes legislation to incapacitate its ‘worst of the worst’ offenders (Brookbanks, 2012: 11), several cases already suggest that three-strikes is not being reserved for egregious cases of serious and/or violent crime, but – instead – is being applied in cases of commonplace, even minor, offending. While the scope and scale of the New Zealand three-strikes system are modest, relative to the size of the California system, it is very possible that the New Zealand three-strikes legislation will lead to undesirable results, analogous to those observed in California, including: inhibition of judicial discretion, a form of net widening (and concomitant miscarriages of justice), disproportionate application of the law, and increases in the prison population (along with attendant fiscal and social costs).
While a comprehensive synthesis of the three-strikes scholarship lies beyond the scope of this article, the article contributes to the literature by reporting newly-available sentencing data gathered from the first three years of the New Zealand three-strikes regime. The article begins by describing some of the empirical scholarship on three-strikes laws. It then describes key aspects of the California law, outlines the passage of the New Zealand legislation, and provides data on the number of first-strike warnings issued in the first 42 months of the regime, the varieties of offence that have triggered strike warnings, and the sex, age, and ethnicity of those who have received first-strike warnings. Available data indicate that offenders who receive three-strikes warnings resemble other offenders who have been sentenced to prison. While this may suggest that judges are issuing strike warnings in appropriate cases, criminologists nevertheless may be concerned that offenders who are young, male, and minority are overrepresented in three-strikes data (as well as in New Zealand prison data).
Three-strikes laws
Philosophically, three-strikes laws present an interesting jurisprudential problem. By escalating criminal penalties for recidivists, laws of this kind have the effect of subverting principles such as the prohibition of double jeopardy, retroactivity and status crimes ‘to qualitatively expand sovereignty beyond any “normal” confinement by the rule of law, to criminalize criminality itself and … to make sentencing harsher’ (White, 2006: 741, italics mine). Nevertheless, while jurisprudentially difficult, legislation that imposes aggravated penalties upon recidivists is not a recent phenomenon, extending back to sixteenth century England and colonial America (Turner, Sundt, Applegate, & Cullen, 1995). For example, New York State enacted an early habitual offender statute in 1797 and passed its Baumes Law, requiring life imprisonment for any offender convicted of a third felonies, in 1926. By 1949, statutes for habitual felons existed in 43 of the then 48 states, as well as the District of Columbia (Tappan, 1949). But for decades, habitual offender laws were of little interest to judges, politicians or the general public. That changed, however, during the mid-1990s, when habitual offender laws were re-branded as ‘three-strikes’ laws. The first of the modern three-strikes laws was enacted in 1993, when, reacting to the murder of Diana Ballasiotes by a convicted rapist on work-release, Washington State voters enacted Initiative 593. In 1994 and 1995, three-strikes laws were passed in another 22 of the 50 US states (Chen, 2008). Three-strikes laws have also been implemented in other countries: Australia (Roche, 1999), the Netherlands (Vollaard, 2010), South Africa (Terblanche & Mackensie, 2008), the United Kingdom (Jones & Newburn, 2006) and – as discussed further in this article – New Zealand.
Given that the California legislation has accounted for between 92% and 94% of all US three-strikes cases (Zimring, Hawkins, & Kamin, 2001), it is understandable that most empirical research has studied the effect on California’s crime rates. Many non-governmental organisations condemned three-strikes as a failure (e.g. Males, Macallair, & Taqi-Eddin, 1999), but other organisations and individual advocates touted it as having a positive deterrent effect on crime (e.g. Lungren, 1998). Deterrent effects were also observed by several academic researchers. For example, Shepherd (2002) examined data from between 1983 and 1996 and reported significant deterrent effects on murder, assault, robbery and burglary. Ramirez and Crano (2003) reported that three-strikes reduced instrumental crimes by 45%, violent crimes by 36% and minor crimes by 34%. More recently, Helland and Tabarrok (2007) estimated that threat of a third strike reduced the commission of felonies among those with two prior strikes by 20%, and Chen (2008) reported a modest deterrent effect for robbery, burglary, theft and motor vehicle theft (although she noted that states with less sweeping three-strikes laws have realized similar reductions in crime). Other researchers, however, have concluded that three-strikes’ impact on crime is modest, even counterproductive. Indeed, Worrall (2004) concluded that three-strikes had no effect on crime, once county-level fixed effects were controlled. Marvell and Moody (2001) found that three-strikes exerted a negative deterrent effect on murder at strike three, noting that offenders with nothing to lose may kill to avoid apprehension.
Three-strikes in the USA
The genesis of the California three-strikes law can be traced to the 1992 murder of 18 year old Kimber Reynolds during a robbery (Reynolds, Jones, & Evans, 1996). In an attempt to create a law that effectively incapacitates serious and violent career criminals, Kimber’s father worked with criminal justice officials to launch a grassroots voter initiative: Proposition 184. However, Proposition 184 languished, failing to gather sufficient signatures to move to the California ballot, until the 1993 kidnapping and murder of Polly Klaas (Kieso, 2005). The intense media coverage surrounding Klaas’ death frequently alluded to the three-strikes initiative, and ingrained in the minds of viewers the idea that three-strikes would have prevented her death (Kieso, 2005). ‘Within days of the reports of her murder, Three-Strikes had gathered 50,000 signatures and was well on its way to becoming the fastest qualifying voter initiative in California history’ (Vitiello, 1997: 412). Even politicians who were sceptical of the wisdom of three-strikes did not feel free, politically speaking, to oppose the initiative. Knowing she might appear soft on criminal justice issues because she was the sister of liberal former-Governor Jerry Brown, Democrat Kathleen Brown announced her full support for both the death penalty and three-strikes (Kieso, 2005). For similar reasons, liberal Willie Brown decided to ‘get out of the way’ of the three-strikes initiative (Taibbi, 2013). On 8 November 1994, Proposition 184 passed overwhelmingly, 72–28% (Bazelon, 2010).
In some ways, California’s three-strikes law resembled the habitual felon legislation that preceded it and the mandatory sentencing provisions of other jurisdictions (Gill, 2008). It stripped discretion from judges, punishing all qualifying offenders equally. But the California law had a number of important features that distinguished it from other, analogous, schemes (California Legislative Analyst’s Office, 2005). These included:
Broad categories of qualifying crimes: the law could be triggered by 21 violent felonies and 42 serious felonies, including burglary (counted as violent crime), many forms of assault and providing some forms of illegal drugs to minors. Robust second strike provision: if a person had one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. Any felony could count as a third strike. If a person had two or more previous serious or violent felony convictions as predicates, the sentence for any new felony conviction (not just a serious or violent felony) was life imprisonment with the minimum term being 25 years. Consecutive sentences: the statute required consecutive, rather than concurrent, sentencing for multiple offenses committed by strikers. For example, an offender convicted of two third-strike offenses would receive a minimum term of 50 years (two 25-year terms added together) to life. Stacking of strikes: there was no limit to the number of felonies that can be included in the consecutive sentence. Probation, suspension and diversion prohibited: probation could not be granted for the new felony, nor could imposition of the sentence be suspended for any prior offense. The defendant had to be committed to state prison and was not eligible for diversion. Reductions in ‘good time’ credit: strikers could not reduce the time they spent in prison by more than one-fifth (rather than the customary standard of one-half) by earning credits from work or education activities.
Possessing these features, California’s three-strikes law was described as ‘one of the most regressive three-strikes laws in the country’ (Giacopuzzi, 2009), as ‘the harshest (non-capital) sentencing law in the United States’ (Stanford Three Strikes Project, 2013), and as ‘the toughest law in America’ (Vitiello, 2004: 1026). In 2006, Proposition 66 was introduced to reduce the number of people going to prison under three-strikes by removing non-violent property and drug offences from the list of eligible offences, but this initiative was defeated, 53% to 47% (Bazelon, 2010). In 2012, however, Californians approved Proposition 36, voting 69% to 31% to limit the effect of three-strikes. The 2012 initiative amended the three-strikes legislation to authorize life sentences only where the third strike is ‘serious or violent’ (unless the third-strike conviction is for certain non-serious, non-violent sex or drug offenses or involves firearm possession or unless prior convictions were for rape, murder or child molestation). The 2012 initiative also authorized prisoners whose third strike was non-serious and non-violent to be resentenced if the judge determined a reduced sentence did not pose unreasonable risks to public safety. Of course, while 156 prisoners have been released under resentencing, 2844 non-violent third-strikers remain in California prisons (Taibbi, 2013).
California’s three-strikes law increased the prison population. Despite early analyses suggesting that Proposition 184 was not filling Californian prisons as quickly as had been forecast (California Legislative Analyst’s Office, 1995), any law that incarcerates a significant population of offenders to 25-years-to-life will ensure that prison cells remain occupied. According to the California Department of Corrections and Rehabilitation (CDCR) (2012), as of September 2012, there were more than 41,000 second- and third-strikers in California prisons: more than 32,700 on enhanced second strikes and more than 8900 on their third strike. These numbers are large enough to shape California’s prison demographics. In 1994, at the time three-strikes took effect, the average age for California prisoners was 32 years old; in 2010, because strikers who go in, stay in, it was 38 (CDCR, 2011). Overwhelmingly, the law has affected males: only 3% of California’s strikers are female (CDCR, 2012). The legislation also has affected racial groups disproportionally. Although African Americans constitute only 6.6% of the California state population (U.S. Census, 2013), they account for 33.5% of all second-strike and 45.7% of all third-strike prisoners (CDCR, 2012). Hispanics, who comprise about 38.2% of the state population (U.S. Census, 2013), constitute 35% of second- and third-strikers (CDCR, 2012). Non-Hispanic whites comprise just 24.1% of strikers (CDCR, 2012) although they make up 39.4% of the state population (U.S. Census, 2013).
Because of three-strikes and other criminal justice initiatives, California’s prisons operated at nearly 200% of their design capacity (CDCR, 2011); this overcrowding, associated with a host of social and psychological ills (Oleson, 2002), exacerbated an already-serious lack of access to medical care. In 2011, in Brown v. Plata, finding that ‘it is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system,’ the U.S. Supreme Court ordered California to reduce its prison population by 46,000 inmates (down to 137.5% of the prison system’s design capacity) within two years to ease overcrowding and improve access to medical care. In practice, however, the matter remains unresolved. As of mid-2013, California prisons still remained overcrowded at 149.5% of design capacity (Chemerinksy, 2013) and the state has rejected calls to reduce its prison population through release (even of non-violent offenders), instead pursuing a strategy of ‘justice realignment’ (Petersilia & Snyder, 2013) which involves transferring low-risk state prisoners to local jails and private prisons.
Three-strikes in New Zealand
Legislators and policymakers frequently adopt best practices from other jurisdictions. There is, after all, no need to reinvent the wheel. A number of tough-on-crime policies have been exported from the US to other jurisdictions (e.g. Jones & Newburn, 2006). The adoption of three-strikes in New Zealand in 2010, however, was a dubious legislative choice. At the time the New Zealand Sentencing and Parole Reform Bill (2009) was introduced, critics of California’s three-strikes had already identified grave problems in the operation of that law (e.g. Males et al., 1999; Zimring et al., 2001). Indeed, weeks before the New Zealand legislation was enacted, journalists reported that hundreds of California prisoners had commenced a hunger strike at Soledad Prison to protest the sixteenth anniversary of three-strikes (Solana, 2010). Given the undesirable consequences of California’s three-strikes law (e.g. Plata and justice realignment), it is disheartening that New Zealand would reinvent a broken wheel.
Like many US states, New Zealand had enacted habitual offender legislation in the early twentieth century: the Habitual Criminals Act 1906 authorized the indefinite incarceration of three-time felons. This law, however, fell into disuse in the 1950s (Newbold, 2007), and three-strikes legislation was not revitalized until the introduction of the Sentencing and Parole Reform Bill (2009).
New Zealand’s Sentencing and Parole Reform Bill (2009) should be understood as a successor to three important pieces of criminal justice legislation from 2002: the Sentencing Act 2002, the Parole Act 2002 and the Victims Rights Act 2002. These three acts were, themselves, intended to be responsive to the 1999 referendum mandating a greater emphasis on the needs of victims and showing support for minimum sentences and hard labour for serious violent offences (Pratt, 2008). In the aggregate, these pieces of legislation increased sentence lengths (Roberts, 2003), encouraged judicial use of maximum penalties, expanded eligibility for preventive detention, restricted parole eligibility, required restitution for crime victims and increased crime victims’ rights (Pratt, 2008). The 2002 acts were legislative expressions of penal populism, in which politicians serve their own ends by tapping into the public’s punitive sentiments (Bottoms, 1995), but they were insufficient. New Zealand’s capacity for penal populism is considerable (Pratt, 2007). The New Zealand three-strikes law was conceived of and championed by advocates for the rights of crime victims: the Sensible Sentencing Trust (SST). Like the father of Kimber Reynolds in California, SST members understood three-strikes to be an effective means to incapacitate serious and violent recidivists (Klinger, 2009). Indeed, when a SST delegation visited the United States on a 2007 fact-finding mission, they drew specific inspiration from the California legislation (Brookbanks, 2012). In its original 2007 form, the three-strikes bill mandated life sentences (with a minimum 25-year non-parole period) for third strikers (Sentencing and Parole Reform Bill, 2009). The SST bill attracted the attention of the right-leaning ACT Party, who agreed to promote the legislation in Parliament. Later, because the victorious National Party did not command a clear parliamentary majority, it entered into confidence and supply agreements with ACT and other minor parties; in exchange for ACT’s political support, National agreed to incorporate ACT’s three-strikes bill into its own policy on parole and enhanced sentencing for violent offenders and to support it for further study in the Select Committee stage (Brookbanks, 2012). Many did not expect the bill to advance, but in early 2010, the then-Minister of Police and Corrections – who, instead of the Minister of Justice, had responsibility for the legislation – announced cabinet-approved changes to the bill, revealing that it was being taken seriously. The revised bill was then referred to Select Committee, with instructions that written submissions would be accepted only from those who had commented upon the initial bill. The Ministry of Justice was not permitted to comment (Brookbanks, 2012). While some of the submissions were strong (e.g. Workman, 2010a), only 36 submissions were received (Sentencing and Parole Reform Bill, 2009). Thus, in New Zealand, as in California (e.g. Zimring, 1996), three-strikes legislation was introduced without meaningful discussion among experts or scholars (Brookbanks, 2012). With their amendments made, the majority of the Select Committee recommended that the bill be passed, and it moved quickly through its second and third readings. On 25 May 2010, by a vote of 63 to 58, the New Zealand Parliament approved the Sentencing and Parole Reform Bill (2009), and the law became effective on 1 June 2010.
The New Zealand three-strikes legislation is not as draconian as the California law upon which it is based, but it still has the effect of increasing sentence length by restricting judicial discretion. The legislation identified 40 qualifying offences, including all major violent and sexual offences with a maximum penalty of seven years imprisonment or more (e.g. murder, manslaughter, wounding with intent to cause grievous bodily harm, sexual violation, kidnapping and aggravated robbery) and established an incremental three-stage system of warnings (Brookbanks & Ekins, 2010). Upon conviction for a qualifying non-murder offence, the offender is sentenced normally, but a first-strike warning is added to the offender’s record. Upon conviction of a second strike, the offender receives a final warning. The offender must serve the entire sentence imposed by the judge, without parole. Upon conviction of a third strike, the offender must serve the maximum penalty authorized by law, and the judge may only impose a lesser sentence if the failure to do so would result in ‘manifest injustice’. Under New Zealand precedent (e.g. R v Rawiri, 2002), manifest injustice is difficult to demonstrate, and, in practice, most third-strikers would be sentenced to the maximum available term. A separate three-strikes system exists for murder and manslaughter, requiring imposition of a life sentence for offenders with one or two strikes (Brookbanks, 2012).
Despite political opposition and wariness among New Zealand’s legal community, first-strike warnings have been issued with increasing frequency since enactment of the legislation. Drawing upon publically-available sentencing data, Figure 1 depicts the distribution of the 3,623 first-strike warnings issued by the New Zealand courts by month between enactment of the three-strikes law in June 2010 and data collection in November 2013, revealing an average increase of 9.3% per month.
Number of first strike warnings issued, by month. Source: Sentencing Parole Reform Act April 2013 Warnings; Sentencing Parole Reform Act 2012–2013 Warnings. As of the end of November 2013, 3,623 first strikes warnings had been issued.
Number of first strike warnings issued by offence type.
Source: Ministry of Justice data (30 April 2013). Total percentages may not sum to 100% due to rounding.
In New Zealand, as in the US, males constitute the majority of strikers. According to data obtained from the Ministry of Justice, at the end of 2012, approximately 91.1% of strikers were male, 8.2% were female, and in about 0.6% of cases, sex data were not available. Most strikers were young: approximately 12.7% were aged 15–19; 46.3% were aged 20–29; 20.3% were aged 30–39; and 20.6% were 40 or older. Another pattern observed under California’s three-strikes law was repeated in New Zealand, as well: minority groups appear to be overrepresented as strikers. New Zealand census data indicate that approximately 67.6% of people in New Zealand are of European descent (Pakeha), while 14.6% are Māori, 6.9% are Pasifika, 9.2% are Asian and 10.4% are other (including those who identified their ethnicity as ‘New Zealander’) (Statistics New Zealand, 2006). While Pakeha are underrepresented as strikers in New Zealand (only 32.9% of strikers are Pakeha), both Pasifika (comprising 15.2% of strikers) and Māori (comprising 47.6% of strikers) are overrepresented. Compared to Pakeha, Māori are 6.68 times as likely to be first-strikers, and Pasifika are 4.49 times as likely. Comparing strikers to the general population reveals dramatic ethnic overrepresentation of both Māori and Pasifika people, akin to that of African-Americans under California’s three-strikes (Taibbi, 2013), but a more apt comparison may be to the prison population. After all, since three-strikes is triggered by serious and violent crimes (the kind of offences that result in prison terms), one would expect striker demographics to resemble those of the prison population. Figure 2, below, displays the percentage of the general population, the prison population and the striker population for ethnic groups in New Zealand.
Percentage of the New Zealand general population and striker population, by ethnicity. Source: Statistics New Zealand (2006 census data); Corrections Department NZ (June 2013 data); Ministry of Justice (31 December 2012). Census data may not sum to 100% because respondents could identify multiple ethnicities. NZ Prison population category ‘other’ aggregates Asian (2.7%), unknown (0.7%) and other (0.9%). Strikers (N = 2066) include data from both first and second strikes. Striker data do not include cases with unknown or missing ethnicity data.
Figure 2 indicates that Pakeha constitute approximately 33.7% of the New Zealand prison population, and a slightly smaller percentage of New Zealand strike warnings: 32.9%. Similarly, Māori constitute approximately 50.3% of the prison population, and a slightly smaller percentage of New Zealand strike warnings: 47.6%. Offenders from other ethnic groups constitute 4.3% of both the prison population and strike warnings. Pasifika persons, on the other hand, constitute a greater percentage of New Zealand strike warnings than the New Zealand prison population. They represent 11.7% of the prison population, but 15.2% of the strike warnings.
These data suggest that three-strikes is being applied to the same kinds of offences that fill New Zealand’s prisons, although there are signs that three-strikes is being used for common offending. For example, in a 2010 case, a 69-year-old man suffering from mild dementia and Parkinson’s disease was charged under three-strikes with two counts of indecent assault after allegedly grabbing the breasts of a fellow resident in his home for the disabled. Under the New Zealand three-strikes law, the man could be incarcerated for the full term of imprisonment (seven years for indecent assault), with no possibility of parole (New Zealand Press Association (NZPA), 2010). In early 2013, another first-strike warning was issued in a case involving the injury of a liquor store employee during an 18-year-old’s botched shoplifting (Feek, 2013). The judge in the case noted that he struggled to impose a 16-month jail term (and a first-strike warning) for an injury that was serious but effectively accidental. Finally, in the 2013 case of R v Whaanga, a second-strike warning was issued to Elijah Akeem Whaanga for two counts of aggravated robbery. In the first robbery, Whaanga took a skateboard, hat and cigarette lighter; in the second, he kicked his victim in the leg and took his hat and cell phone. Professor of Law Warren Brookbanks stated that the case ‘made a mockery of its promoters' claim that it would target only “the worst of the worst”’ (Sharpe, 2013a), and Professor of Criminology John Pratt characterised Whaanga not as a serious and violent criminal but as someone more akin to a ‘schoolyard bully’ (Radio New Zealand, 2013). Certainly, these three examples suggest that the New Zealand three-strikes law is being applied in prosaic, even petty, cases.
Discussion
Since its passage in 1994, the California three-strikes law (upon which the New Zealand law is modelled) has been used to incarcerate more than 100,000 persons (Bazelon, 2010). The California law has truncated judicial discretion, produced infamous miscarriages of justice and exacerbated already-serious prison crowding. Although the US Supreme Court has upheld the California three-strikes legislation as comporting with the Eighth Amendment’s prohibition against cruel and unusual punishment (Ewing v. California, 2003; Lockyer v. Andrade, 2003), legal commentators nevertheless have suggested that the law would violate human rights conventions (MacLennan, 2011). While the sentence lengths established under the New Zealand three-strikes law are much briefer than those mandated under the California law, early indications suggest that the New Zealand law will produce many of the same deleterious consequences.
Three-strikes will restrict judicial discretion. This, however, is no accident. Three-strikes, like other forms of mandatory sentencing, transfers discretion away from judges to legislators (who create the laws) and to prosecutors (who charge individuals under the laws) (Gill, 2008). Mandatory sentencing is often justified upon a suspicion that sympathetic judges, having to face criminal defendants in their courtrooms, will undervalue the rights of crime victims (who are frequently not present) and sympathize with the defendant. Such a mistrust of judges has driven many sentencing systems in the US (Wright, 1991), and it colours the language of the victims’ rights organisation that drafted the New Zealand three-strikes bill: the SST (e.g. SST, 2010: 7).
Three-strikes may also lead to a form of net widening (McMahon, 1990). Net widening occurs when policy interventions have the perverse effect of ensnaring individuals in the criminal justice system who, but for the intervention, would have been diverted out. In the context of mandatory three-strikes laws, the restriction on judicial discretion can force judges to apply habitual criminal provisions in cases where the crime satisfies the letter – but not the spirit – of the law. Under California’s draconian three-strikes law, a number of infamous cases have became exemplars of penal excess: Jerry DeWayne Williams was sentenced to 25-to-life for stealing a single slice of pizza (Taibbi, 2013): Gary Ewing was convicted of stealing three golf clubs while on parole and sentenced to 25-to-life (Ewing v. California, 2003); and because Leandro Andrade was convicted for stealing five children’s videotapes worth $153 USD on two separate occasions, he was sentenced on two separate 25-to-life third strikes (i.e. 50-years-to-life) (Lockyer v. Andrade, 2003). While the New Zealand three-strikes law does not authorize such lengthy sentences for non-homicide crimes, even on the third strike, the legislation has nevertheless already created several situations where defendants have received sentences that have aggrieved the sentencing judges (e.g. NZPA, 2010; Sharpe, 2013a). Brookbanks (2012) has described a worrying hypothetical in which, after many years, an offender with two previous strikes commits an act of negligent manslaughter (i.e. failing to correctly apply a brake pad that results in a fatal accident) and must be sentenced to life imprisonment (with a minimum prison term of 10 years). Because judges who operate under mandatory sentencing regimes cannot exercise normal judicial discretion, they cannot operate as a meaningful check against unjust outcomes (Oleson, 2007).
Closely related to miscarriages of justice, the New Zealand three-strikes law might also contribute to disproportional incarceration of offenders, by sex, age and ethnic group. Under the California three-strikes law, most defendants sentenced under three-strikes were young males. According to Ministry of Justice data, this is also true in New Zealand. In California, although African Americans constituted only a small fraction (6.6%) of the state population, they accounted for more than a third (33.5%) of the incarcerated striker population. Similarly, in New Zealand, although Māori constitute only 14.6% of the population, they already account for more than 47.6% of the first-strike warnings; although Pasifika persons constitute just 6.9% of the New Zealand population, they already account for more than 15.2% of the first-strike warnings. Ethnic overrepresentation of this kind is highly problematic from a public policy standpoint. It undermines the credibility and legitimacy of the criminal justice system (Jackson, 1987).
Finally, the New Zealand three-strikes law will also increase the prison population, driving up the financial (and social) costs associated with incarceration. In California, more than 100,000 strikers have been sent to prison since passage of the 1994 law (Bazelon, 2010), at an average 2008–2009 cost of $47,000 USD per year. Medical costs were responsible for a great deal of these expenses (Auerhahn, 2001). Because of medical expenses, it costs $70,000 USD per year to incarcerate an older prisoner in a California state prison: this is ‘the largest and fastest growing segment of special needs prisoners in California’ (Turley, 2007: 5). While the size of the current New Zealand prison system (∼8597) (Walmsley, 2013) is much smaller than that of the California system (∼132,785) (CDCR, 2012), the cost of incarcerating a New Zealand prisoner is high: almost $91,000 NZD per year (New Zealand Department of Corrections, 2011). By increasing the mean sentence length for second strikers (to the full term of the sentence imposed, without parole) and for third strikers (to the maximum statutory penalty, unless this results in manifest injustice), the costs associated with incarceration will increase. As in California (e.g. Brown v. Plata, 2011), this may contribute toward prison crowding and the degradation of prison conditions (Pratt, 2009). In addition to financial costs, lengthier terms of incarceration for greater numbers of New Zealand prisoners will impose greater social costs of families, friends, employers and communities of those who go to prison under the three-strikes regime. For some communities, over time, the neighbourhood effects noted by Clear (2007) may be a potential consequence: according to his analyses, when a critical mass of a community is incarcerated, it can undermine families, businesses and social organisations, placing the entire community at greater risk of further incarceration and social collapse.
Judges and lawyers are establishing a body of three-strikes case law in New Zealand (e.g. Norton v. R, 2012), but there have been no serious challenges to the lawfulness of three-strikes itself, even though jurists have observed that the Sentencing and Parole Reform Bill (2009) may violate human rights obligations (MacLennan, 2011). There have been promises from the Labour, Māori and Green parties to repeal three-strikes if elected (Sharpe, 2013b), but no legislative amendments have been introduced to date. And despite criticisms from church groups and organisations such as Rethinking Crime and Punishment (Workman, 2010b), there has been no widespread outcry for repeal of the law, perhaps because the legislation has heretofore exerted few tangible effects. Although 3,623 first-strike warnings were issued in the first 42 months of the law, these warnings have not constrained the sentences that were imposed. Only 28 defendants have received no-parole sentences under second-strike provisions, and no one has yet received a maximum-sentence third-strike. While Māori and Pasifika are overrepresented in first- and second-strike warnings, they are incarcerated in New Zealand prisons at analogous rates. To date, the three-strikes law has had little influence on prison populations, and has not yet incurred real financial burdens upon New Zealand taxpayers. If the three-strikes regime continues to operate, however, downstream effects on prison populations and costs are likely to occur.
Conclusion
Available data from New Zealand suggest that offenders who receive strikes under three-strikes legislation resemble other offenders who have been sentenced to prison. While this may indicate that strikes are being imposed for offences that would otherwise warrant prison sentences, available evidence also shows that three-strikes is not being used to deter the ‘worst of the worst’ targeted by the legislation (Brookbanks, 2012: 11). Instead, judges are imposing warnings at increasing rates and the strikers receiving this sentence are disproportionately Māori and Pasifika, young and male. Yet perhaps because proportions of Māori and Pasifika strikers resemble the ethnic proportions observed in New Zealand prisons, and perhaps because the fiscal consequences of three-strikes have not yet been felt, there has been no widespread public demand to repeal the New Zealand three-strikes law.
Footnotes
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.
Declaration of conflicting interest
None declared.