Scoop Election 08: edited by Gordon Campbell

On the ‘Three Strikes’ Policy and the SAS in Kabul

January 20th, 2010

three strikes
three strikes and you're a law-and-order populist

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In the Book of Leviticus, God takes a no nonsense, zero tolerance approach to offending. Curse your parents, or let your child worship Moloch and the punishment is death without appeal or opportunity for parole. Adultery = stoning. Homosexuality = death. Have sex with an animal and you must die, and the animal as well. Rape your daughter-in-law and the punishment is death, for her as well. Sleep with your aunt and God will ensure you both die childless etc etc. As history indicates, none of this worked out very well as a deterrent policy. And if it didn’t work for God, the chances are it won’t work under the Act Party’s “Three Strikes” policy, either.

In true Biblical fashion, there are 36 offences that will henceforth fall within the ambit of the Three Strikes policy – all of them of a violent and/or sexual nature, and that qualify for a maximum sentence of seven years or more. Incest and acid throwing have been deleted from the original list, partly because as Corrections Minister Judith Collins explained at yesterday’s press conference, acid throwing is rare here, and incest is already covered on the list by sexual violation of a child.

Commit one of the 36 and judges must put the offender on a One Strike alert. Commit two and the offenders loses any access to parole. At the third strike, the offender automatically qualifies for the maximum sentence for the offence, again without parole. The only element of judicial discretion allowed in this regime is if it would be ‘manifestly unjust’ to impose this regime – and as Hide also confirmed at yesterday’s press conference, he is offering the courts no guidelines as to what may circumstances would qualify as manifest injustice.

The system will not be retrospective : anyone in prison now for a violent offence will not be on Strike One. The clock on the Three Strikes policy will only start ticking once the legislation is passed. The message is that anyone in future who qualifies for these procedures will deserve all that they get : at the press conference Judith Collins used the word “psychopath” to describe anyone likely to be caught up in it.

Really? Let’s assume someone commits a violent offence in their teens. If they behave themselves in prison, they may be out by the time they’re 22 or 23. If they offend again in their 30s they are judged by this law to have foregone their right to parole and – in effect – rehabilitation. A year ago, Chief Justice Sian Elias said that we cannot afford the social and economic cost of our current punitive approach to criminal offending and sentencing – which already sees New Zealand putting its citizens behind bars at a per head of population rate unmatched by any other Western democracy outside the United States. Now, the Key government has decided to make that situation worse.

In announcing their intentions, a curious double message was evident at the press conference. On one hand, this Three Strikes measure was being touted as likely to deal a major blow to violent crime rates – but on the other, it would not cost much because it would not put (or keep) many more people in jail. Only 56 more beds in the first five years, with each prisoner on average costing $90 – 100,000 per year to maintain. Since these will be classed as serious violent offenders – and rendered even more dangerous to prison staff because they will have no prospect of parole and rehabilitation – the per bed cost will actually be considerably higher.

In other words, Hide, Key and Collins were overselling the social impact and underselling its social and economic cost. As Hide conceded, one of the surprises for him in the course of carrying out the exercise was the realisation of how few offenders the Three Strikes policy would actually affect. So much for this being a significant tool in the prevention of crime. However, the actual impacts are guesswork at this stage. The only way the equation of major impact on crime = not many more inmates can work is on the basis of heroic assumptions about the deterrent effect of this policy. Good luck on that one.

The greater likelihood is that the government is underestimating the likely impact of this policy on rates of imprisonment. The per-bed increases, for instance, were worked out on the basis of offending and sentencing trends averaged out over the past 20 years. The relevant cycles are likely to be shorter. Moreover, this tool will almost certainly have an impact on the exercise of Police discretion – given this new opportunity to put an offender away for longer by bringing a charge from the list of 36, the Police are likely to jump at it.

The approach is entirely punitive. There is, as many critics have already noted, no recognition of the role of parole in reducing crime, through creating an incentive and opportunity for reform. As the American penal system sadly demonstrates locking people away for longer creates a culture of hopelessness and alienation that not only makes prison itself a far more dangerous place for the people who work in it – but unleashes a far more dangerous inmate back into society when they are finally released, as eventually they will be.

As an aside, the policy demonstrates the Act Party’s primitive view of how society actually works. With crime as with the economy, the Act Party treat society as being merely an aggregate of individuals, a gaggle of rational actors singly making rational choices on a cost and benefit basis. It is the worldview of a 14 year old. What it allows Act to do is ignore social factors altogether – and the fact that different people face differences of wealth, health, opportunity and access to resources that significantly affect the choices they make, or can make.

While this does not absolve people altogether from responsibility for the choices they make, it does not absolve the Act Party from ignoring the existence of social realities altogether, either. I’m talking about the contribution that income inequality, poor housing and unemployment make to crime rates. Given that glaring omission, one can guarantee that the Three Strikes policy will do little or nothing to stem the rate of violent crime. If anything, it is likely to make the deprived and desperate, the mentally unstable and the truly psychopathic even more dangerous. The only winners will be the corporates who are eyeing the business opportunities in private prisons, and wanting a steady flow of clientele.

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SAS in Kabul

So once again, we have to rely on the foreign media telling us what our SAS have been doing in Afghanistan. These foreign media reports are proving to be consistent. Last year, the Norwegian media told us that our SAS would be replacing the Norwegian special forces unit based in and around Kabul. Eg:

The New Zealand SAS will take over the SOF operation in Kabul from the Norwegian SOF (NORSOF). NORSOF has conducted operations against IED and SIED facilitators and makers, financiers etc and counter-narcotic operations in RC Capital (Kabul area) during the last 18 months. They have also mentored the Afghan Security Force or Crisis Response Unit…

The New Zealand government has not been talking about the location of the SAS deployment in public, but in Norway it is common knowledge.

Earlier this week, Dexter Filkins of the New York Times reported the presence of eight or ten New Zealand SAS troops as back-up during the recent Taliban attack on Kabul. While foreign media are not being told by official defence forces beforehand – for obvious reasons – what their special force contingents are doing, they are being given information afterwards, as to the work being carried out.

Why is similar information being with-held here, once particular missions have been completed? Yesterday, Key indicated that only if foreign media make such disclosures – or if for instance, he added, the SAS incur casualties – will further information be forthcoming from him. If anything, such reticence could create something of an incentive for the Taliban.

The Kabul incident highlights an interesting aspect of the SAS deployment. Supposedly, the strong point of the SAS in its previous deployment was its ability in ‘long range, out in the desert behind Kandahar’ operations. In replacing the Norwegians, the SAS are this time now operating in urban settings in and around Kabul – and in this particular case, they seem to have playing their role as mentors to the Afghan Crisis Response Unit referred to above. Given this week’s major attack on Kabul, the SAS work is likely to heat up during 2010. One wonders what training they have had in the counter-narcotic operations that were also part of the Norwegian special forces role.

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    1. 3 Responses to “On the ‘Three Strikes’ Policy and the SAS in Kabul”

    2. By stuart munro on Jan 20, 2010 | Reply

      The thing about baseball is that it is a remarkably good spectator sport. Crime however, is a sordid business, more often sad or mad than bad, and plagued with fouls. So I cannot endorse Rodney Hide’s cynical attempt to create a larger prison population to support his private prison proposals, and no doubt his US modelled prison labour schemes. The conflict of interest is just too explicit.

      But I can see another and more entertaining use of the baseball paradigm and that is in parliament.

      MPs who, like Rodney, cheat on their allowances, even if they repay them, should have a strike recorded against them, for attempted theft. Then when they attempt to charge for their services in an area in which they bear delegated public resposibility, that would be a second strike. A third offence would see the the end of the term for MPs just too unscrupulous to bear the public franchise, and it would be a handy remedy to serial offenders like the thoroughly disreputable Winston Peters, and anyone who might be tempted to take him as a role model.

      Unlike Hide’s proposal, this would save public money, it would improve the quality of representation and thus economic performance, and like baseball, it would entertain the public, providing a modest return on a public expense which is otherwise a completely non-performing investment.

    3. By ya on Jan 20, 2010 | Reply

      Am I missing something about what this change will have on the use of discretion and the current use of sentence discount for an early guilty plea.

      My understanding is that there will be little incentive for the defendant to plead before trial, they are going to get the max sentence without parole whatever happens.

      Given that a lot of these cases will be sexually related, am I right in thinking this change will result in an increased likelihood of victims being subjected to public trials?

      They should at least allow the judge discretion about parole if the defendant pleads guilty. Not just to spare victims, but to try and reduce the costs associated with more trials.

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