Will the Three Strikes policy work?

Published 22 Jan 2010

The New Zealand government announced a new judicial ‘three strikes’ policy shortly before the close of business hours on Tuesday afternoon:

'Prime Minister John Key told reporters that an agreement with the ACT Party had been reached and the policy would be incorporated in to legislation due in parliament in March...

Mr Key today said the altered policy would incorporate "significant aspects of ACT's three strikes policy." An offender would receive a standard sentence and warning for their first serious offence. The second offence would usually lead to a jail term with no parole and a further warning. On conviction for a third serious offence, the offender would receive the maximum penalty in prison for that offence with no parole.'

Imposing harsher sentences for violent crimes (or 'sensible sentencing', as its proponents call it) has long been one of the ACT party's key policies. Their argument appears to be that harsher prison sentences will act as a deterrent to potential criminals, thus reducing the crime rate. It sounds like good common sense: the worse the anticipated punishment for an action is, the lower the likelihood that a rational agent will pursue that action.

The only problem is that it doesn't resemble reality. For decades, study after study has shown that harsher sentencing has if anything an adverse effect upon recidivism rates, and precious little deterrent effect. For instance, an investigation by Chen & Shapiro (2004) shows that 'harsher prison conditions cause higher rates of post-release criminal behavior, behavior which is also measurably more violent.' (Click here for a summary of their findings)

However, one cherry-picked article is hardly convincing on its own. Much better evidence is a report commissioned by the Department of the Solicitor General Canada compiling 'fifty studies dating from 1958 involving 336,052 offenders and producing 325 correlations between recidivism and (a) length of time in prison and recidivism or (b) serving a prison sentence vs. receiving a community-based sanction'.

The report found that:

'Under both of the above conditions, prison produced slight increases in recidivism. Secondly, there was some tendency for lower risk offenders to be more negatively affected by the prison experience.

The essential conclusions reached from this study were:

  1. Prisons should not be used with the expectation of reducing criminal behaviour.
  2. On the basis of the present results, excessive use of incarceration has enormous cost implications.
  3. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders’ attitudes, values, and behaviours while incarcerated.
  4. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution.'

Moving closer to home, these opinions are shared by our Chief Justice, Dame Sian Elias. In October last year, Dame Elias gave a controversial Shirley Smith address on the current state of criminal justice in New Zealand. Journalist Colin Espiner called the speech 'the most insightful and damning summary of justice policy in this country since the Roper Report' but 'political suicide', and predicted her imminent disappearance from the top job for opposing the judicial policies of both major political parties. Dame Elias' address outlined the considerable shifts in New Zealand's attitude towards tackling crime during her forty years of involvement in criminal justice, and how increasingly punitive sanctions against offenders and more victim-focused judiciaries have not made our communities any safer. Rather than summarise her arguments further here, if you've got the time I recommend reading the speech itself.

The three strikes law is intended to dissuade convicts from re-offending by making the prospect of future imprisonment less appealing. If such policies work then we ought to observe an inverse correlation between sentence lengths and crime rates. However as the above reports make clear, this is not the case - in fact the inverse appears true. As Lord Bingham pointed out in 2000, 'the problem with incarceration is that in all but a small number of cases at some point the offender must re-enter society.' In practice, prisons tend to function as 'monster-factories', by locking up society's most aggressive and at-risk individuals in a place where they will reinforce each other's behaviour and teach each other more effective ways of breaking the law. The result is that offenders are usually more dangerous when they come out than when they went in.

The United States was the first place to enact three strikes laws, and hence they represent the best opportunity to study its success. Undoubtedly the state with the harshest three strikes law, California implemented a system in 1994 which usually requires a sentence of 25 years to life for a third offence. According to Wikipedia, 'early studies of three strikes laws found negligible impacts on overall recidivism rates amongst the general population', although the Wikipedia page does acknowledge room for error in the cited statistic. Furthermore, 'incidence of murder, rape, and aggravated assault has risen from 2002 to 2008' in California. Givcn that this information is now widely available, the government's decision to implement similar laws in New Zealand must either be due to ignorance about their lack of effectiveness, or else a cynically populist move to satisfy a woefully misinformed voter base.

One of the most significant problems with the 'sensible sentencing' model for reducing crime is that violent offenders are not rational agents. The typical offender is male, often of low intelligence and poor education, has a family history of ineffectual parenting and often emotional, physical or sexual abuse, and comes from a background of poverty, poor housing, instability, association with delinquent peers and unemployment. Given what we know about the psychology of violent offenders, it is unreasonable to expect the average convict to make the kinds of rational decisions that a theorist might expect.

This strong correlation between a person's background and their likelihood of criminality has controversial implications: If the circumstances surrounding a individual's birth largely determine whether they will become a criminal, then it is unfair to punish them for something that is largely outside of their control. Better to fix the underlying cause of their behaviour instead of punishing them for exhibiting symptoms of deeper societal illness.

‘As a society we create our criminals; we, as a whole, are responsible.’ — Shirley Smith

Separate from the attempts to lower recidivism, another common rationale for harsher sentences is retribution. Such arguments place emphasis on victims of violent attacks, and a need to 'see justice served' by exacting revenge upon the perpetrators. However it is difficult to see how the desire for vengeance is worth the price. The average cost to the taxpayer of keeping an offender in prison for a year is nearly $100,000 (which may be contrasted with the average cost per day of an offender on a community based sentence of $10.04). Furthermore, New Zealand is already second only to the US in the proportion of prisoners to the total population, and is facing a looming crisis because we do not have enough prison beds. A desire for revenge against murderers and rapists is understandable, but we must not lost sight of the fact that while violence is a cost to the community, the incarceration of offenders is also extremely costly. If longer sentences lead to an increase in violent crime, significant costs to the taxpayer and one of the largest incarcerated populations per capita in the world, is the satisfaction of our base desire for revenge worth it? And if so, how many more violent crimes should we be willing to allow per year in order to ensure that convicted criminals are satisfactorily punished?

Whilst I agree with conservative 'sensible sentencing' advocates that we ought to do everything we can to prevent violence, imposing harsher sentences has been shown time and time again to actually worsen the situation. As Shirley Smith pointed out, 'the threat of imprisonment does not deter, and prison does not reform'.

Further reading: