Three strikes: providing an incentive to kill

datePosted on 19:55, February 19th, 2009 by Anita

Chris has used up two strikes; a pub fight, and getting caught carrying a knife during a burglary. Back out of jail it’s hard to find work, money’s really tight, and old habits kick back in so late one night Chris opens a window in an dark house in an expensive street.

Part way through checking through the house for valuables, there is a noise, and a light turns on. Grabbing a knife Chris sees a woman standing in the doorway to her bedroom. Chris has two options:

  1. Run out the front door – knowing that if the woman picks Chris out of a line-up or the Police solve it with forensics it’ll be a life sentence for aggravated burglary; or
  2. Stab her – if she’s dead there’ll be no line up, so unless the Police can solve it with forensics there won’t even be a trial.
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29 Responses to “Three strikes: providing an incentive to kill”

  1. MacDoctor on February 19th, 2009 at 21:17

    I find your touching faith in the rationality of Chris the burglar very amusing. I am assuming you have never met a real burglar. Plankton is more intelligent.

    Chris will panic. All rational thought will disappear and the life of the woman will be dictated by the extent of his panic.

  2. Lew on February 19th, 2009 at 21:29

    MD,

    I find your touching faith in the rationality of Chris the burglar very amusing. I am assuming you have never met a real burglar. Plankton is more intelligent.

    I find your lack of faith in the rationality of all people who might possibly be subject to the 3-strikes law … frightening.

    Never underestimate those who might do you harm.

    L

  3. StephenR on February 19th, 2009 at 21:34

    Does this:

    Chris has used up two strikes; a pub fight, and getting caught carrying a knife during a burglary. Back out of jail it’s hard to find work, money’s really tight, and old habits kick back in so late one night Chris opens a window in an dark house in an expensive street.

    …fit with this:

    Mr Hide said a “strike offence” was defined in the legislation as the most serious violent and sexual offences, including murder, attempted murder, grievous bodily harm, serious firearms offences, rape and a range of sexual offences on children and young people.

    ?

    I would prefer to have a more precise description of the Bill more than the words of a politician, but there you go. It will be tinkered with in Select Committee anyway…

  4. MacDoctor on February 19th, 2009 at 21:54

    Lew:

    Never underestimate those who might do you harm.

    This is why, if armed, you should shoot first and ask questions later.

    Never assume the criminal you confront is rational.

  5. Ari on February 19th, 2009 at 22:19

    Never assume the criminal you confront is rational.

    I’d personally imagine it depends heavily on the nature of the crime and the criminal. Premeditated or organised crime is more likely to have a certain “rational” bent to it. For instance, gangs function very much like high-stakes corporations do in many ways.

  6. Anita on February 19th, 2009 at 22:30

    StephenR,

    I know, what Hide says the act will do and how the bill are drafted are inconsistent.

    Here is the list of qualifying crimes, as well as the type Hide describes it also includes a bunch of others which are in no way “the most serious”.

    In case you were challenging my examples, try 188(2) and 232(1).

  7. Lew on February 19th, 2009 at 22:34

    MD,

    This is why, if armed, you should shoot first and ask questions later.
    Never assume the criminal you confront is rational.

    If an interloper can reasonably expect that you intend to shoot first, would it not be reasonable for them to do so?

    The point I’m trying to make is tart rationality is bigger than you think. People – even highly dysfunctional people – are fairly good at tactical utility calculations. It’s strategic utility which is more challenging.

    The point of Anita’s post is one of principle, not one related to the specific example. The point is that the law, prosecution norms and sentencing guidelines change behaviour, and often in unpredictable ways.

    L

  8. Anita on February 19th, 2009 at 22:39

    Lew writes,

    The point is that the law, prosecution norms and sentencing guidelines change behaviour, and often in unpredictable ways.

    I spent a while this evening looking for a reference to an argument I’m sure I once heard reported, I thought attributed to David Lange (but I can’t be sure). He was arguing that raising the penalty for rape could lead to rapists killing their victims, because it would alter the cost-benefit ratio of murder.

  9. imperial zeppelin on February 19th, 2009 at 23:13

    Anita.
    Nice example. The expression “Might as well be hanged for a man than a sheep” comes to mind.

    Hmm, google is insisting the expression is “hanged for a sheep than a lamb.” Bye-bye folk memory. Hello homogenisation.

  10. Lew on February 19th, 2009 at 23:30

    Anita,

    raising the penalty for rape could lead to rapists killing their victims, because it would alter the cost-benefit ratio of murder.

    It’s not exactly the argument you’re looking for, but I think there’s an analogous system at play in the case where this poor bastard had his fingertip cut off because he installed a biometric security system in his car, which thieves wanted to steal more than they didn’t want to cut off his finger.

    Lesson: as you increase the cost of an action, you deter only those people for whom the cost has now become too great. The object in such cases is in keeping down the number of people who have nothing to lose – because no cost is too great for them. If we create a legal framework which makes people desperate, we will end up with a society of desperadoes.

    L

  11. MacDoctor on February 20th, 2009 at 00:40

    Anita: If you are trying to explore rationality in a criminal mind, then it would follow that bringing back hanging would deter most murders as the cost would be too great. The police, after all, are substantially better at catching murderers than they are burglars, making the chances of being caught and hanged a real possibility.

  12. Lew on February 20th, 2009 at 08:19

    MD,

    Anita: If you are trying to explore rationality in a criminal mind, then it would follow that bringing back hanging would deter most murders as the cost would be too great.

    No, again, you misstate the nature of rationality; again, you assume that there is one rationality, and that’s strategic rationality. In fact, criminal behaviour is about situational utility – magnitude of penalty, magnitude of reward, and the imminent risk assessment of being caught in this case. Of those three variables, two tend to loom more largely in the minds of criminals when deciding whether to commit a given offence: risk of getting caught and magnitude of potential reward. The severity of the punishment is a very distant third. You can read the abstract of a paper on this matter in the specific case of residential burglaries here, and you can a more formal analysis of the same principles in relation to software piracy here.

    L

  13. Anita on February 20th, 2009 at 09:19

    Imperial Zeppelin writes,

    The expression “Might as well be hanged for a man than a sheep” comes to mind.

    Yep. Which says that during the gap between the third-strike crime and the arrest one might as well go on a crime spree, because there are no consequences for anything after the third-strike crime.

  14. Graeme Edgeler on February 20th, 2009 at 09:31

    Anita – it does include crimes that are less serious than other crimes, but something only counts as a strike if it results in a sentence of 5+ years imprisonement.

    Your pub fight would almost certainly not be a strike unless he stabbed the guy during it, or the guy died.

    And maybe not even then. Although Bruce Emery killed someone, his manslaughter conviction – with a sentence of 4 years 4 months – would not count as a strike.

  15. MacDoctor on February 20th, 2009 at 09:41

    Lew:

    Thanks for the links. The severity of punishment is little considered in these studies, because the level of punishment is low. I am not sure you can legitimately draw the conclusion from these studies that the death penalty would not figure in any rational decision by a criminal.

    I am not a death penalty advocate, BTW, I am simply pointing out that that is the logical conclusion of the premise of a rational criminal.

    However, I seriously doubt that rational thought is a factor in the vast majority of murders in New Zealand. I stand by my original observation that the actual act of murder is an irrational decision brought on by panic. The original burglary may have been planned rationally, but the murder is not.

    Of course, the type of criminal caught in the “three strikes” net is highly unlikely to give a rip one way or the other. Someone like Graeme Burton clearly cares nothing for consequences. I doubt if the fact that he may be on his third strike would even occur to him.

  16. Graeme Edgeler on February 20th, 2009 at 09:52

    Which says that during the gap between the third-strike crime and the arrest one might as well go on a crime spree, because there are no consequences for anything after the third-strike crime.

    Except if that potential third strike offence was pretty minor, and probably wouldn’t result in a sentence of 5 years imprisonment, then you don’t get life. You may not even get prison.

    You appear, in part, to be complaining of problems in California’s three-strikes law … problems which have been avoided here. I still oppose the law, but it’s not as bad as you seem to think it is.

  17. Anita on February 20th, 2009 at 10:03

    MacDoctor writes,

    Of course, the type of criminal caught in the “three strikes” net is highly unlikely to give a rip one way or the other. Someone like Graeme Burton clearly cares nothing for consequences. I doubt if the fact that he may be on his third strike would even occur to him.

    Graeme Burton is the counter example to your argument. At the time it was reported (I can’t find it in public archives, sorry) that some of his actions were caused by him trying to provoke the Police to shoot him so that he wouldn’t be sent back to prison.

    Burton is also the counter example to David Garrett. Preventative detention exists and works.

  18. What would Hayek say on February 20th, 2009 at 11:45

    From an initial look at this legislation, its effect seems to be more codifying the requirements for preventative detention, noting that current legislation allows for someone to be given preventiative detention on the first offence, given the seriousness of the offending. Graeme might be able to highlight the similarities/differences better.

    Like Graeme i’m not particularly in favour of this legislation, but it is not the same as the US three strikes law.

    I think there is more of a wider debate about over justice system, the role of preventative detention (and when it applies) and rehabilitation. There is also a fundamental question of resourcing. Is it worthwhile having parole system at all? Instead of funding parole, admit its broken (and no political party will ever properly fund it to work as intended) and instead transfer all the funding/resources into rehabilitation which may produce better results. As a result person x will not be eligible but they will have access to study, work/life skills training so that on release there maybe a better possibility of adjusting to society and finding work. I’m aware pigs may fly also.

  19. BeShakey on February 20th, 2009 at 11:46

    For those who are concerned about whether criminals would actually act in this way they may like to think about a more straight-forward example that has been seen in other countries. Why, if you know that your current crime is a third strike, would you surrender peacefully to police? Much better to attempt to evade or kill, which has no additional punishment.

  20. BeShakey on February 20th, 2009 at 11:51

    Hayek – the evidence suggests that parole is an important part of rehabilitation/reintegration. While you might be able to get round it by increasing funding to prison-based rehabilitation, I’m not sure how that would work in practice.

  21. Graeme Edgeler on February 20th, 2009 at 12:52

    think about a more straight-forward example that has been seen in other countries. Why, if you know that your current crime is a third strike, would you surrender peacefully to police?

    Because this isn’t an overseas three-strike law!

    Just because you have committed one of the offences on the list of crimes that can count as strikes doesn’t mean it will. The judge will be allowed to say, this crime while serious, would only warrant a sentence of 4 years’ imprisonment, therefore it will not count as a strike and you will not be sentenced to life imprisonment.

    From an initial look at this legislation, its effect seems to be more codifying the requirements for preventative detention, noting that current legislation allows for someone to be given preventiative detention on the first offence, given the seriousness of the offending. Graeme might be able to highlight the similarities/differences better.

    This is quite a bit different from preventive detention, in that – when it does apply – there is a minimum non-parole period of 25 years. This is a lot longer than preventive detention. Replacing the third strike 25-years-to-life sentence with third strike preventive detention (with a minimum non-parole period equal to the finite sentence that would otherwise have been imposed) is one thought I have to how to mitigate the injustice this is likely to cause in its current form. I’d still be opposed, but I wouldn’t be aghast at the prospect.

  22. StephenR on February 20th, 2009 at 13:12

    Thanks Anita.

  23. BeShakey on February 20th, 2009 at 13:36

    Just because you have committed one of the offences on the list of crimes that can count as strikes doesn’t mean it will. The judge will be allowed to say, this crime while serious, would only warrant a sentence of 4 years’ imprisonment, therefore it will not count as a strike and you will not be sentenced to life imprisonment.

    But that would only apply for borderline cases, where the offender believed that they were likely to be given a lesser sentence. For the cases where an offender feels confident that this would be third strike the problem would still arise.

  24. Pascal's bookie on February 20th, 2009 at 14:23

    If this gets on the books, and there are horror crimes, and the offenders aren’t eligible, the criteria will be changed.

  25. Lew on February 20th, 2009 at 14:50

    `Eligible’ is an odd choice of terminology here.

    L

  26. Pascal's bookie on February 20th, 2009 at 15:35

    isn’t it though :)

    I’m thinking that the changes are meant to be used. Once the 3 strikes idea is in the law, it will not be seen as extreme as it now seems. We know what the SST thinks about sentencing and prison conditions and so on.

    They aren’t going to go away if this gets in, so what will they be arguing for when the next shock horror crime hits the news?

    They’ll reach for the tool that’s in the box already, 3 strikes. “Maybe we set the criteria too leniantly, if only we had made crimes x strikeworthy, victim y would have been spared”

    With ‘3 strikes’ already accepted, that becomes harder to argue against. That, I fear, is the point of this law. They want to lock up more people for longer, and they are looking for candidates. Hence, ‘eligible’.

  27. Lew on February 20th, 2009 at 16:00

    PB,

    I’d been planning a post on how 3 strikes is an agenda-setting or normalisation strategy, much as you argue. The chief piece of evidence for this, to me, is the fact that the law (according to its proponents) will just sit there doing nothing for 15 years, being part of the criminological furniture. It won’t actually mean a damned thing for that time – won’t save one extra life or keep one extra criminal in a cage – it’ll just be there in the background changing our norms and values.

    L

  28. What would Hayek say on February 20th, 2009 at 16:24

    Graeme – thanks for the clarification and accept your point that a 3rd time PD is a possibly a better path and like you still don’t like the legislation.

    PB and Lew. Just to clarify, your argument is that there is a strong lobby group in the polity that is pushing for harder sentencing. They will continue to seek harder sentencing if they get this bill passed. If this bill passes there will then be more lobbying … this seems to be downward spiral and one your unable to stop whatever you do.

    Ok lets step back. We have to first acknowledge that there is a strong lobby group (whether you agree with them or not) for longer sentences. So long as they are a strong lobby group then there will be pressure on both parties to enact tougher crime policies. Worrying about the particular legislation is from a strategy perspective almost irrelavent and wasting energy as your in a losing fight.

    Therefore the issue is not the legislation but the drivers for lobby group and whether there is an effective group presenting an alternative story that has resonance with the public.

    Final points about offenders on 3rd strike and therefore killing someone/going down in a blaze of gunfire. People do things for reason – not necessarily rational by your or my standards, but still for a reason. A nihilist would be unlikely to have made it to a 3rd serious offences having chosen the path of police shootout earlier.

    Better arguments are that we are not providing an effective system of intervention before someones life has spiralled down a path of committing three serious offences. I’d prefer we address things earlier.

  29. Graeme Edgeler on February 20th, 2009 at 18:03

    the fact that the law (according to its proponents) will just sit there doing nothing for 15 years

    The three strikes bit won’t, but the consequences on second strike can kick in after five years (there is no parole on a second strike). It will be sooner as well if someone is convicted of a crime while in prison.

    The life without parole for murder as a second strike can also kick in earlier than 15 years, and the bill also introduces the option of life without parole for first strike murder.

    If this gets on the books, and there are horror crimes, and the offenders aren’t eligible, the criteria will be changed.

    The horror crimes I can think of will almost certainly involve some sort of horrific murder (e.g. rape followed by murder, home invasion killing), in which case they will be ‘eligible’ for life without parole, whether they’ve had strikes or not. And even if it’s not murder and there aren’t enough strikes, preventive detention is probably an option.

    I’d note too that this really does cover all the semi-serious violent and sexual offences; myou’d have to adding pretty minor crimes to the list to rationally extend its reach.

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