‍Origins of Three Strikes‍

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The Sentencing and Parole Reform Act 2010 introduced what is commonly known as ‘Three Strikes’ into New Zealand sentencing law. This law violates basic principles of justice enshrined in New Zealand law, in addition to violating the cardinal principles of modern justice (e.g. the proportionality of justice). Three Strikes laws are an example of policy transfer – a policy uplifted from elsewhere in the world and transplanted to New Zealand.

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Three Strikes laws originated in California in the early 1990’s, where Mike Reynolds, a grief-stricken father of a murder victim campaigned for a ‘three-strikes-and-you’re-out’ style system for criminal justice, that would give a penalty of 25 years to life for a third felonious offence. This policy was put to ballot in 1992 without any civil or academic advice on its likely efficacy or effects, passing with 67% of the popular vote. Ultimately the implementation of this law in its original form in California in 1992 was the result of the politicisation of law and order, and the Governor of California at the time took public opportunities to congratulate Reynolds. Three Strikes therefore represents a particularly populist style of policy making, from its origins to the use of the ‘three strikes’ slogan itself. Reynolds himself talked of a ‘street cleaning’ effect while campaigning for the signatures he needed to take his proposal to the state ballot. Following the introduction of the law by public ballot in California, many other states followed suit, and two decades later, New Zealand did the same.

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These laws are an example of policy transfer from the United States, where they were created without any evidence base. The lack of evidence of efficacy in this or any other jurisdiction is an enormous and fundamental problem with the legislation.

Impacts of Three Strikes

Three Strikes laws focus on punishment, not justice. They are rigid and fixed, and can therefore lead to unjust outcomes. Designed to prevent repeat offending, they require that a judge hands down a maximum sentence on the third offence (or strike). On the first and second strikes, judges have access to a ‘safety valve’ that allow them to decline imposing sanctions from the Three Strikes regime if this would be ‘manifestly unjust’ – however this safety valve does not exist on the third strike (Fitzgerald v R [2020] NZCA 292 [15 July 2020]).

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These laws mean courts cannot take into account mitigating factors when sentencing a person - nothing about their health, wellbeing or history is considered. 

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Three Strikes laws do not adhere to our commitment to rehabilitate those who commit crimes, instead these laws were essentially designed to exclude them from society entirely.

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JustSpeak supports the repeal of these sections of the Sentencing and Parole Reform Act, and the return of sentencing discretion to judges. In particular, the following impacts of Three Strikes particularly concern JustSpeak:

• They exacerbate inequitable outcomes for Māori

According to the Ministry of Justice, Māori are 18 times more likely to receive a second strike sentence than non-Māori, and 82% of all people who have received a Third Strike sentence are Māori.

• They are ineffective

The Ministry of Justice evidence brief on Three Strikes established that there is no evidence of this policy reducing crime, or having any obvious effect on crime rates at all. Despite this, the Ministry of Justice estimates that the policy costs the government over $2.7 million per year, and anticipates that this amount will only grow over time.

• They violate our Bill of Rights

The New Zealand Court of Appeal has affirmed that the Three Strikes Laws violate the Bill of Rights Act 1990 (Fitzgerald v R [2020] NZCA 292 [15 July 2020]). In California, where Three Strikes originated, the reality that Three Strikes laws violate the cardinal principles of justice (including proportionality of punishment) was known long before New Zealand picked up the policy (see Ewing v California 538 US 11 [2003], 01-6978). 

In the same vein, the existence of three strikes threatens the separation of powers by violating judicial independence. This has been a particular issue in New Zealand, where judges are bound to give proportionate sentences, however have also been bound by Three Strikes legislation to give, in some cases, wildly disproportionate sentences. As Zimring writes, California’s three strikes legislation was “an extreme example of populist pre-emption of criminal justice policy making.” In New Zealand’s version of the law, judges are limited in their discretion for the first two strikes, before having their discretion removed entirely for the third strike. The removal of sentencing discretion from judges has resulted in disproportionate and excessive sentences being handed down.

Three Strikes has contributed to the growth of the prison population in New Zealand and elsewhere in the world

Recommendations

JustSpeak strongly recommends the repeal of Three Strikes. These laws are not based on evidence, they threaten the integrity of New Zealand’s justice system, and they do not produce the results that were promised upon their implementation.

Transitional Arrangements

JustSpeak also recommends the implementation of transitional arrangements when Three Strikes is applied, as this will go some way to rectifying the excessively long sentences that have been handed down under this law.

• To this end, providing second and third strike offenders the opportunity for resentencing would be appropriate, particularly given the relatively low number of offenders this would impact, and the unjust sentencing process they have undergone.
• Reinstating parole eligibility to all individuals sentenced under Three Strikes is also absolutely necessary, as it is their right.

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