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Three Strikes: Proportion and Protection

March 6th, 2009 by Madeleine

The Attorney General has identified an “apparent inconsistency” with the proposed “3 strikes bill” and the New Zealand Bill of Rights. This inconsistency is around whether the punishment inflicted by the 3rd strike would be “disproportionately severe.”

There have been various reactions to this; the most extreme I have heard came from the bill’s proponent David Garrett “So what? Alter the Bill of Rights Act. We’ve got too hung up on people’s rights.”

Discussions on talkback and on the blogosphere tend to include the suggestion that criminals don’t deserve the same rights as others while others seem to be getting hung up on the apparent disproportionality the bill might cause in some instances and following Garrett’s line, suggest amending the Bill of Rights which, in turn, causes some to state that a bill that requires you to amend the Bill of Rights is evidence of a flawed bill.

The clarity many had towards the concept of a 3-strikes bill is now muddied and confused but I don’t think it has to be.

First, Garrett is wrong. One cannot get “too hung up on human rights”, the first generation type that is, [he has a point on second and third generation rights but then these are not rights and that’s probably a discussion for another post] and they apply equally to all including criminals.

Second, no Bill of Rights is beyond question. This means that if the Sentencing and Parole Reform Bill does, in fact, require an amendment of the Bill of Rights to be passed this is not, in and of itself, necessarily evidence that it violates human rights. It could be evidence that the Bill of Rights itself is wrong.

I don’t see why that, in a conflict between a proposed piece of legislation and the Bill of Rights, we should always assume, a priori, that the Bill of Rights is correct. What if a piece of legislation is proposed that conflicts with the Bill of Rights and yet there are good reasons for believing the proposed legislation is just, and in fact, the fault lies with the Bill of Rights?

Suppose that a Bill of Rights authored in one generation was legally interpreted in such a manner that it permitted slavery. A new piece of legislation was then later introduced banning slavery and this was deemed contrary to the Bill of Rights as it affronts the property rights of slave owners. One response could be that previous legal interpretations of the Bill of Rights were incorrect but it could have actually been the case that there was no interpretation error, that Bill of Rights authors and society at the time it was enacted, had no difficulty with slave ownership.

In such a situation surely the clash between proposed legislation and the constitution cannot be dismissed simply by appealing to the fact that the new bill might conflict with the Bill of Rights? Perhaps it would be appropriate to question the action the Bill of Rights was protecting.

That said, I am not convinced the 3-strikes bill does, in fact, conflict so badly with the Bill of Rights that the Bill of Rights would need amending for it to be passed because I don’t think that the proportionality doctrine applies to situations such as the ones identified by the Attorney General in his report on the Sentencing and Parole Reform Bill. I think appropriate force for punishment is being confused with defensive force.

The proportionality doctrine is linked to retributivist understandings of punishment. A person is punished because he or she deserves it and to a degree no more than he or she deserves. However, there are times when we incarcerate those we know via due process to be innocent yet are a threat to society. For example, those found not guilty by reason of insanity are commonly deprived of their liberty despite the lack of culpability and therefore lack of dessert because of their future threat to others. This is also true of self-defence. We can use lethal force against another even if they lack culpability for their crime providing the threat is sufficiently serious and immediate etc. The force used in self-defence must be proportionate but not to the past actions but rather to the future threat (this is how self-defence differs from retributive punishment). Quarantine laws would be another example, there are others too.

Clearly, then, there are accepted instances where it would be mistaken to apply the proportionality doctrine. Such cases seem to have common to them the fact that if the person’s liberty were not restrained then a serious and real future threat to life, liberty and the bodily integrity of others from the person being restrained exists.

In the case of the 3-strikes policy the advocates are not claiming that a person who has committed a third crime deserves a harsher punishment, they are claiming that an habitual offender of particular serious violent crimes has shown him or herself to be a credible threat to others and should be incarcerated for this reason. If they are correct, then the proportionality doctrine does not apply.

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12 responses so far ↓

  • thanks Madeline,
    well said.

  • * If people can be incarcerated because they present a credible threat to society then liberty is dead

    * The whole notion of incarceration by the state is based upon the erroneous notion that it is necessary for the state to maintain social order and is closely related to Rosseau’s evil notion of social contract

    * There is no such thing as human rights

    * the Bill of Rights is the means by which the state restricts our rights (see the link below)

    * People like Garrett are such a public menace that I am tempted to introduce them to a firing squad

    http://kiwipolemicist.wordpress.com/2009/03/06/act-party-tramples-on-freedom-to-get-three-strikes-law/

  • KP liberty is a human right. The fact you seem to not like the concept of liberty being dead and you are classically liberal shows you support human rights.

    The original concept of human rights were what is known as first generation rights – life, liberty, property, etc which a person possessed by virtue of their humanity. I refuse to consider the so called second and third generation rights as human rights (e.g. education, welfare, discrimination, etc) these so called rights are more egalitarian based and as normally characterised are a load of rubbish and certainly not “rights.” (I did make that distinction in what I wrote.)

    The notion of incarceration, the concept that the state has the power of the sword, it should interevene at the point your fist reaches my nose, has its roots in viewpoints that run much further back than Rousseau’s. Rousseau’s notions of social contract are just one theory, one that I do not subscribe to, Locke has a different social contract theory which I much more time for.

    The Bill of Rights in NZ is not completely wrong as it does contain pretty much all the first generation rights (but for property rights though the Treaty of Waitangi covers these) but I agree it goes beyond where it should and contains some of the bogus subsequent “rights” and of course the NZ Human Rights Act is hideous.

  • Madeline: I am opposed to the concept of human rights, but I do support personal and property rights as described in the non-aggression axiom (which would appear to encompass what you call first generation rights).

    The concept of “human rights” is nebulous and open to abuse by people like Garrett, whereas the non-aggression axiom gives a solid definition: it’s explained in the posts that I linked to.

    Only when our rights are defined by the non-aggression axiom will we be truly free.

  • Thanks for you comments about Technorati Madeleine. Not sure your suggestions are my style. Might give it some more time for now. I think the flag was automatic so removing code from my site probably won’t make any difference. I think it needs a human to reset it.

    Interesting discussion above. I agree about the distinction of rights, though I have not fully thought thru which exist and which don’t from a biblical perspective. I tend to thing freedom of thought to be a fundamental right which I guess is related to liberty.

    I understand Garrett’s sentiment about being too hung up on rights. If we are defending rights of criminals and these significantly affect the rights of non-criminals then many would suggest the criminals rights should go.

    Part of the problem may be that most people don’t think deeply enough. Garrett at least can see that rights compete. Many just want a list of rights they can have because people are selfish, and many may not even realise that these can contradict each other. And ask them where rights come from…!

    You post takes the concept deeper showing there is indeed no conflict. I sometimes wonder if lawyers finding inconsistencies has nothing to do with consistent law and much to do with legal activism.

    While I prefer consistency and think pragmatism can be dangerous, there may need to be a degree of inconsistency if the law is not going to be rewritten from the ground up. Though new law should, in general, aim towards decreasing discrepancy.

  • Has anyone watched Raising Arizona lately?

  • I saw it years ago, frustrating slapstick craziness from memory, do you see some relevance to this discussion in it? I always enjoy moview analysis 🙂

  • With respect KP I think that talk of rights is itself the problem. Contemporary rights-speak has taken the original concept of what a right is and morphed it into anything anyone can allege is important to them.

    I find the non-aggression axiom compelling in some respects but I feel it is open to flaws in others and as previously stated, my libertarian leanings come from my theology, not my reading of Ayn Rand, so I prefer to think of rights as duties, thus construing them more precisely. This excludes all the rights you and I would view as rubbish and includes only those worthy of the term.

    Recent blog post: MandM Best Religion Blog Nominee

  • Hi, Madeleine.
    I suppose criminal justice has moved towards acknowledging societal defence to be a just sentence with the introduction of preventative detention. However, it will prove impossible, in my view to maintain a category of sentences that are put in a special category of being non-retributive which you appear to be arguing for. The comparison with institutionalising the insane for the protection of themselves and others seems problematic because of the implicit “not-guilty by reason of insanity” association. One would hate to see “not guilty by reason of being a habitual criminal”, and a defence of “he could not help it because his criminality is habitual” emerge.
    Better to establish a new crime of “habitual criminal”, conviction for which would carry mandatory long sentences. The crime of being habitually criminal is recognised in the biblical law codes (Deut 21:18ff).
    Otherwise it will be hard to avoid the perception that “three strikes” laws punish people for crimes that are anticipated, but have yet, to commit.
    JT

  • Hi John, you write: The comparison with institutionalising the insane for the protection of themselves and others seems problematic because of the implicit “not-guilty by reason of insanity” association. One would hate to see “not guilty by reason of being a habitual criminal”, and a defence of “he could not help it because his criminality is habitual” emerge

    I don’t think Madeleine’s analogy is supposed to be pushed this far. The reason we do not subject the criminally insane to retributive punishment is because their mental state means they lack culpability, the reason they are institutionalised is because they are a threat to others. Although both occur in the context of insanity they are actually separate issues. Theoretically a person could lack culpability for a crime and yet not be a threat to society.

    In the case of recidivists they are both a threat to society and culpable of the crimes they are committed. Moreover the way we tell if they are a threat to society (i.e. that they are incorrigible recidivists) is by determining whether they have repeatedly and culpability committed crimes.
    .-= My last blog-post ..Published – Three Strikes: Proportion and Protection =-.

  • […] The editor of the New Zealand Law Students Association (NZLSA) publication LEX has just advised me that she has published my article “Three Strikes: Proportion and Protection.” […]

  • […] will be moving forward as part of the government’s legislative program. In my post Three Strikes: Proportion and Protection, which was published in the New Zealand Law Students Association publication LEX, I argued that the […]