By Kim Workman
Last Monday’s announcement by Jamie Whyte that ACT would
introduce a three strikes policy for burglars caught me by surprise - so much so that I initially attributed
the policy to the Conservative Party – an early morning blunder on which I
blame the combination of diabetes and a surfeit of easter eggs. More
importantly, the rationale for this policy contradicted everything I thought I
knew about burglars and punishment. In
particular, ACT claimed that (a) most burglaries are committed by sophisticated
professional burglars, (b) burglars make a rational choice to offend, based on
a calculated risks/benefit analysis; and (c) prison acts as a deterrent.
Most of my concerns were picked up by media commentators and
fellow blogsters. The Waikato Branch of the Law Society
questioned the deterrence theory,
Justspeak challenged
the ‘rational choice’ theory, and pointed out that the science of brain
development tells us that our young people have a reduced ability to be aware
of the consequences of their actions. This means a deterrence-based criminal
justice system is likely to be especially ineffective in reducing offending by
young people. Read more
But it was veteran
journalist and blogster Bryan Edwards, who gave the most compelling description of the way most
burglars behave – one that resonated with my own experience as a police officer.
There are several problems with
deterrent sentences. The first is that they don’t work. …………….In general the people we call
‘criminals’ aren’t particularly good at thinking or weighing the consequences
of their actions. The burglar won’t put down his jemmy to consider Dr
Whyte’s increased penalties for burglary. He doesn’t think, “Hmm. I’ve been
banged up twice already for nicking stuff from people’s houses. Previously I
might have got 18 months, but now I’ll get three years. I really don’t think
it’s worth the risk. I’ll go and get a job instead.”
Leaving aside the burglar’s
chances of getting a job with two convictions under his belt already, he’s
unlikely to go through this process of considering the length of sentence he’ll
get for a third offence. By definition, recidivist criminals aren’t good at
learning from their mistakes. So our burglar is more likely to think: “I’ve
done 30 burglaries, got nicked twice, not a bad average. And I probably won’t
get nicked again anyway. I’m better at it now. Learnt a lot in the slammer.”
The near total failure of the New Zealand police, who are brilliant at catching
murderers, to catch burglars might suggest that he has a point.
The New Zealand Herald’s editorial, 'Act Party's burglary law will strike out' provided
a thorough analysis of the policy, which resulted in a rejoinder from ACT defending the policy.
Some aspects
of the policy are unsettling. The idea
of increasing the length of imprisonment for offenders, relates to only 15% of
cases where burglars are caught – and after
they have traumatised burglary
victims. It is not proactively concerned
with reducing the number of victims. In
an interview with Newstalk ZB’ Mike Hosking Jamie
Whyte said that when the law is introduced anybody that’s got two or more
strikes will automatically go on to three strikes. Well, Attorney General Andrew Finlayson has already
agreed that such a measure is inconsistent with the right to be free from
retroactive penalties and double jeopardy
affirmed in the Bill of Rights Act. This view was confirmed by the Court of
Appeal in Belcher v Chief
Executive of the Department of Corrections.
Reducing Burglary by 35% ? - Yeah Right
The one
attractive aspect of this policy was that the since the introduction of the UK Three
Strikes legislation in 1999, it had reduced the burglary rate by 35%. I was unsure of this claim for three
reasons. First a policy that successful
would have been widely publicised; and yet I had not seen any research about
it. Second, it seemed odd that it would
have that effect when the average time burglars spend in UK prisons is 7
months, compared to 16 months in New Zealand.
Third, ACT’s
statements on the issue were inconsistent:
“a similar policy introduced to
England and Wales in 1999 had resulted in a 35 per cent drop in
burglaries”. Waikato Times
“The policy is modelled
on a three strikes for burglary law introduced in England and Wales in 1999.
Burglary in England has since dropped by 35 per cent since the introduction of
the three strikes. After a third conviction for burglary offenders in England
are imprisoned for three years with parole. The New Zealand Herald
In the policy launch, Jamie Whyte said:
Three
strikes for burglary was introduced to England and Wales in 1999. As in New
Zealand, burglary was out of control and given a low priority by the police and
the courts. A Labour government passed a three strikes law whereby a third
conviction for burglaries earned a mandatory three years in prison. Burglary in England has fallen by 35 percent.
The ACT Policy Statement however, is more cautious:
Since a
three-strikes-for-burglary policy was introduced in the England in 1999 the
number of burglaries has declined by 35%.
Some of this decline is surely due to the three strikes policy and
generally tougher sentencing introduced in the 1990s.
What is the Truth?
How true is this claim?
I contacted the Editorial Board of the UK Prison Service Journal, (of
which I am a member), and other UK criminologists and criminal justice
professionals, including Professor Mike Hough, the UK expert on sentencing
policy. They came back with the same response
- there is no suggestion at all that the three strikes legislation has played
any major part in the reduction in burglary.
While there has been a 35% drop in burglary in the UK since 1999, there
were similar drops for car crime and other property offences, for which there
is no three strikes provision. A
Rethinking media statement, ACT fabricates claim that UK 3 Strikes for burglars reduced crime, explains what did assist in reducing burglary.
More significantly, the UK
three strikes provision is has been applied in only 22% of all 3 strikes cases. The minimum
term was introduced in December 1999 under the Powers of Criminal Courts Act.
By the end of 2008, some 3,018 offenders were convicted of a third burglary.
But just 684 – or 22 per cent – of them have been handed three years or more
while up to another 517 were given three years but then had time taken off for
a guilty plea.
Some 463
offenders were not sent to prison at all, including 257 who were given a
community sentence, 114 who had a prison suspended, eight who were handed a
fine and 18 who were given a conditional discharge. Of those who were sent to
custody, more than 500 were given less than a year.
Why is
this? Well I can only speculate, but
there are two issues that stand out.
First, the UK has a set of sentencing guidelines which guides
judges in sentencing practises, in order to avoid the inconsistent practises
which are a hallmark of New Zealand justice. (1)
The UK Sentencing Guidelines require the sentencing judge to
consider factors relating to the level of harm caused by the offender, the
extent of culpability, seriousness of offences, and any personal mitigating
factors. Having done that exercise, the
Judge is then instructed that:
‘where sentencing an offender for a qualifying third domestic
burglary, the Court must apply Section 111 of the Powers of the Criminal Courts
(Sentencing) Act 2000 and impose a custodial term of at least three years,
unless it is satisfied that there are particular circumstances which relate to
any of the offences or to the offender which would make it unjust to do so.'
It may be that the judiciary consider all the standard
factors relating to the crime of burglary, and determine the penalty. If they decide at that point that three years
imprisonment is not
appropriate, they then set about to
satisfy themselves that an ‘exceptional circumstance’ exists, which ensures
that a more appropriate penalty applies.
One could argue that the Judiciary resent applying a
sentence that is determined not by themselves, but by Parliament. Mandatory
sentences undermine the expertise and independence of judges who do not take
kindly to any violation of the principle that
one of the cornerstones of our democracy is that sentencing in
individual case is rightly a matter for the judge.
They are assisted in that by case law, and
sentencing precedent. The
UK Court of Appeal, in an opinion by Lord Chief Justice Wolfe, in a case
involving mandatory life sentences for second serious violent or sexual crimes,
ruled that a finding that the offender “was not felt to present a significant risk to the public”
would satisfy the “exceptional circumstances” test. (2)
The UK Sentencing
Advisory Panel, which advises the country's most senior judge, has also
assisted signalling that burglars could
escape a prison sentence if they are drug addicts or alcoholics, under the
‘exceptional circumstances’ clause.
There is another reason.
Judges know that imprisonment rarely acts as a deterrent, a fact borne
out by the deterrence research to date. As a result,
nearly 80% of all third time burglars escape the three year sentence.
Legislation that is resisted to that degree, is legislation not worth having. Far better that we focus on front end policies that reduce the prevalence of burglary and involve the Police and community partners in strategies that work.
Legislation that is resisted to that degree, is legislation not worth having. Far better that we focus on front end policies that reduce the prevalence of burglary and involve the Police and community partners in strategies that work.
References
1. Goodall, Wayne and Russil Durrant, 'Regional variation in sentencing: The incarceration of aggravated drink drivers', Australian & New Zealand Journal of Criminology June 3, 2013.
2. Jones, Trevor, and Tim Newburn. 2006. “Three Strikes and You’re Out: Exploring Symbol and Substance in American and British Crime Control Policies.” British Journal of Criminology 46(5):781–802.
41 Comments on this Post:
KIm nice little article. I was also suprised to hear of the claimed success of the three strikes for Burglary in the UK. It took me less than 5 minutes on google to establish it can't have made any difference to the drop in burglaries as it was rarely used. lazy work by ACT
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