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.