Three Strikes and Preventive Detention: Do We Really Need Them Both?

Abstract

This paper examines the three strikes and preventive detention sentencing schemes. They both essentially deal with how to handle repeat violent and sexual offenders, but do so in very different ways. This paper answers the question of which sentencing scheme is better and whether we actually need them both. Four key areas are identified for comparison: consistency with our national and international human rights obligations especially under the New Zealand Bill of Rights Act 1990 and the International Covenant on Civil and Political Rights; how well each sentence fulfils the sentencing aims of deterrence and incapacitation; and how each system incorporates judicial flexibility and discretion into decision making. This paper comes to the conclusion that, while both schemes have some flaws, the three strikes regime would create a lot more problems than it would solve. It presents major inconsistencies with our international human rights obligations especially with regards to disproportionate sentences. It fails to satisfactorily fulfil the aim deterrence and is outperformed by preventive detention in terms of incapacitation. Lastly it does not afford nearly as much discretion to judges and as such makes it a very unattractive option. While preventive detention has some flaws of its own, they are relatively minor compared to three strikes. This author believes that three strikes should be scrapped in favour of preventive detention.