Three strikes: The end of a failed experiment

Opinion: Aotearoa’s three strikes law resulted in overly harsh sentences and amplified the over-incarceration of Māori and Pacific peoples, writes associate professor Carrie Leonetti.

Opinion: It can be hard to trust judges. Sometimes, it seems like their sentences are incomprehensibly lenient or they are too easily swayed by persuasive criminal barristers telling a sob story. It can appear that the system cares more about the rights of criminals than the harm done to victims.

The reality is that every case is different, stereotypes can be misleading, “serious” is in the eye of the beholder, and offences that might sound horrifying on paper (robbery, gun possession) can have individual circumstances that are sympathetic. Behind the caricature of a monster criminal in a news story is sometimes a decent human in a difficult situation who made one terrible mistake (or three).

In 1994, voters in my home state of California passed the “Three Strikes and You’re Out” referendum in response to several high-profile child murders. The idea behind the law was to strip judges and the Parole Board of the discretion to impose lenient sentences on serious recidivist offenders.

Three strikes regimes are based on a deterrence rationale – that offenders would think twice about reoffending if they knew that guaranteed long prison sentences awaited their crimes. Over time, however, research demonstrated that three strikes had no measurable deterrent effect.

Some studies even suggested that it might increase the rates of more serious crimes (eg, murdering witnesses) because, once an offender had committed a “third strike”, there was little incentive not to commit a fourth.

 Associate professor Carrie Leonetti
Associate professor Carrie Leonetti

Three strikes shifted sentencing discretion from judges to prosecutors, who had the power to decide whether to charge defendants with crimes that qualified as “strikes”.

As a result of systemic biases, the law disproportionately incarcerated under lengthy non-parole sentences vulnerable and marginalised defendants, particularly those who were Black or had physical and psychiatric disabilities.

It ignored the possibility of rehabilitation and swept into its net many offenders who were not the “worst of the worst” for whom the law was created.

The purpose of three strikes was to ensure consistency in sentencing, but instead it often led to absurdly unjust sentences, new types of arbitrariness and disparity, and accelerated mass incarceration. It packed prisons, clogged courts, and nearly bankrupted the State.

Three strikes had so many unintended consequences and so little effect on crime rates that California voters overwhelmingly adopted a new referendum in 2012 to restore discretion to sentencing judges.

Three strikes had a similar effect here as it had in California: disproportionately harsh sentences, no measurable deterrent effect, and amplification of the over-incarceration of Māori and Pasifika.

Carrie Leonetti University of Auckland

In the meantime, however, other states and countries followed California’s lead, including Aotearoa, New Zealand.

In 2010, as California was nearing the end of its failed three strikes experiment, Aotearoa, New Zealand was just starting its experiment with the Sentencing and Parole Reform Act 2010.

Three strikes had a similar effect here as it had in California: disproportionately harsh sentences, no measurable deterrent effect, and amplification of the over-incarceration of Māori and Pasifika defendants, who have been given more than fifty percent of the strikes. It stripped people of their mana and broke up families and whānau without enhancing public safety.

It can be hard to trust judges and easy to second-guess their decisions based on press releases and social-media posts.

In the absence of evidence that three strikes regimes keep anyone safer, however, basic human rights principles dictate that we leave judges with the discretion to decide appropriate sentences on a case-by-case basis.

Carrie Leonetti is an Associate Professor at the University of Auckland Law School and a former criminal defence lawyer from California.

This article reflects the opinion of the author and not necessarily the views of the University of Auckland.

First published on the Herald on 12 August 2022.

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