Tuesday, April 30, 2013

The fatal flaw of “Three Strikes”

Opponents of the Three Strikes Law are up in arms that

When National passed its “three strikes” legislation in 2010, they promised that it would not be like California’s, and target shoplifters, drug dealers, and other petty criminals. Instead, it would be used on “the worst of the worst.” Throughout the debates (which are linked to from here), they repeatedly referred to “the worst murderers”, the “worst serious violent offenders” and the “worst” sexual offenders. So who are actually they using it on? Dumbarse muggers … like Elijah Akeem Whaanga, 21, [on] his second strike; Judge Tony Adeane told the Hastings man his two “street muggings” that netted “trophies of minimal value” meant his outlook was now “bleak in the extreme.” “When you next steal a hat or a cellphone or a jacket or a skateboard you will be sent to the High Court and there you will be sentenced to 14 years’ imprisonment without parole,” Judge Adeane said.

“If our legal system thinks that this dumbarse is among ‘the worst of the worst,’” says Idiot/Savant, “or that his crimes merit 14 years imprisonment without parole, then it is fundamentally disproportionate and unjust… [violating] the Bill of Rights Act’s affirmation of freedom from disproportionately severe treatment or punishment.”

In response to this tirade of opposition objecting to the dumbarse’s bleak future under the three-strikes regime, defenders of the law look forward to this predator being caged, saying

this is precisely the kind of person the three strikes law is supposed to protect us from. This young man has terrorised multiple victims on multiple occasions. He has already received jail-time and a first strike. He is clearly not going to stop…
The entire point of the three-strikes legislation is completely ignored by most commentators. The purpose of the legislation is not to bring justice, punish or even deter the criminal. The entire purpose is to protect the public from predatory wolves. After the third act of violence, we can be sure that Mr Whaanga will continue to be a dangerous predator, barring some sort of miracle.

Neither the opponents nor the defenders of Three Strikes seem however to have spotted what can only be described as a fatal flaw of the legislation, which I pointed out when it was introduced: that rather than protecting the public it offers the offender a clear inducement to savagery. Because if this violent dickhead now stands to get 14 years’ imprisonment without parole for stealing “a hat or a cellphone or a jacket or a skateboard,” then why wouldn’t he murder for them? Or rape? Or terrorise?

Why wouldn’t he, when the sentence for these crimes these days is virtually the same (for someone with his obviously low time-preference) as the one with which he’s been threatened?

The three strikes law has a fatal flaw. But it will I fear be some innocent victim who experiences the fatality.

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10 Comments:

Blogger macdoctor said...

I can see a flaw in your riposte, Peter.

You assume rational thinking...

4/30/2013 12:56:00 pm  
Blogger Graeme Edgeler said...

Neither the opponents nor the defenders of Three Strikes seem however to have spotted what can only be described as a fatal flaw of the legislation, which I pointed out when it was introduced: that rather than protecting the public it offers the offender a clear inducement to savagery. Because if this violent dickhead now stands to get 14 years’ imprisonment without parole for stealing “a hat or a cellphone or a jacket or a skateboard,” then why wouldn’t he murder for them?

If he murders them, he gets life without parole. Not release at 14 years.

Why wouldn't he? Well, why don't you ask all in people in California jails for 25-life on third strikes who didn't murder people?

Why do you assume that everyone - including people like the offender here - is rational? Because a boat-load of evidence suggests they're not.

Other jurisdictions have three strikes law, and the same arguments you present here were used against them. But they enacted them anyway and the feared result simply didn't happen.

I oppose three strikes - whether in its harsh California form, or in the much less harsh New Zealand form, but the objection you raise here has been answered - it's a theoretical problem which does not arise in practice.

4/30/2013 01:44:00 pm  
Anonymous Johnny said...

Well, all the lefties want us to believe that the threat of prison is not a deterrent to crime.

So you can't have it both ways. If prison time isn't a deterrent, nor is it an incentive.

Besides that, your "logic" assumes that the prospect of prison time incentivises graver crime. Nonsense.

The threat of 14 years dissuades ALL criminal activity. It dissuades murder, and for this man, it also dissuades violence. Your logic is silly. This man is no more nor less incentivised to murder than I am, or you are.

4/30/2013 01:48:00 pm  
Blogger Eric Crampton said...

Some proportionality is maintained - we don't have the California version of 3 strikes. The penalty for murder remains much higher than the penalty for robbery. You're definitely right that the US implementation has seen the kind of severity shift you're talking about, but that's very plausibly because the penalty for a wide range of third strike offences is identical.

4/30/2013 02:02:00 pm  
Blogger Eric Crampton said...

@Graeme: there is decent evidence of a severity shift in the California data. See here. http://www.nber.org/papers/w13784

4/30/2013 02:05:00 pm  
Blogger Peter Cresswell said...

@Graeme, MacDoctor: There's no assumption at all of rationality, so you can keep that boat tied up at the dock.

In fact, as I say above, for someone with his obviously low time-preference there is little difference to him (at the point of him choosing to commit a crime) between life without parole and release at 14 years.

4/30/2013 03:20:00 pm  
Anonymous Johnny said...

You are not thinking straight, Peter.

A. With no strikes against him, what penalty does Whaanga face if he murders someone?

B. With two strikes against him, what penalty does Whaanga face if he murders someone?

If A = B, then please explain how Whaanga is more likely to murder given the consequences in each scenario are identical, i.e. life in prison in each case.

4/30/2013 04:24:00 pm  
Anonymous Johnny said...

I say that neither strike 1 nor strike 2 has any bearing on Whaanga's propensity to murder.

The forces tending to increase the murder propensity are unchanged.

The forces tending to decrease the murder propensity are unchanged.

With no increase nor decrease in murder propensity, the chances of Whaanga murdering are surely unchanged by the presence or absence of 1st and 2nd strikes.

4/30/2013 04:31:00 pm  
Blogger Graeme Edgeler said...

If A = B, then please explain how Whaanga is more likely to murder given the consequences in each scenario are identical, i.e. life in prison in each case.

Under the New Zealand two strikes law, A does not equal B.

Murder as a first strike results in life imprisonment, with a minimum non-parole period of 10 years (or higher, if the particular murder warrants it).

Murder as a second strike or third strike results in life imprisonment without the possibility of parole.

4/30/2013 08:38:00 pm  
Anonymous Dolf said...

If an individual goes around physically harming, and violating the property rights of others, for fun (let's face it, he did not steal a loaf of bread) then surely the function of government is to remove this individual from the public.

You would agree that this is the only valid function of government.


If this individual further proves to be incapable of rehabilitation, then surely it is the valid function of government to remove him from the public permanently.

Your argument smells like apeasement. "Don't threaten him, lest he kills" Seriously? If a politician said this about another country, you would be up in arms.

Would your opinion be different if you were the one who got bashed in the face? Over a hat, no less.

5/01/2013 09:06:00 am  

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