Afternoon roundup

Today's worthies:

• Cabinet has not yet produced a cabinet paper on the Taranaki oil ban, and Simon Bridges says that the government instructed officials not to provide advice on the ban. Even if you think that 'doing something about climate change' was part of a Labour/Green political mandate, wouldn't it make sense to make sure that whatever is done is the thing that can most cost-effectively abate emissions? If Bridges is right that the government instructed officials not to provide advice, can there be any good reason for that instruction? The most obvious explanations are not good. 


• Kiwisaver provider Simplicity runs a very low fees model that is very attractive. But not one that's attractive to me, since they seem to have very strong non-return preferences baked into their model. If tobacco, gambling, oil or porn stocks started looking like attractive investment options, would they change their mind about the ban? 


• The government's looking to repeal the three-strikes legislation. Farrar points out that three-strikes policy is fairly popular, but I'd be surprised whether people remember come 2020 unless crime figures become salient. I rather liked New Zealand's legislation, and especially in comparison to American examples. The point of three-strikes, from an economic perspective, is to maintain marginal deterrence. In short, you need a stronger expected formal penalty for a second offence or third offence than you do for a first offence to achieve the same deterrent effect. Why? Because the first offence comes with a giant informal "Now you have a criminal record and a whole pile of things you thought you could do with your life are now going to be very very hard" penalty. That informal penalty's sunk after you've got the first conviction, so you need a stronger formal penalty for the later offences. And where California induced problems by having the same harsh penalty for second and third strikes across broad classes of offences, New Zealand maintained proportionality by linking everything to the sentence-specific maximum penalty. But, all that said, I doubt there'll be any particular effect on crime. There were just too many high profile cases where judges thought any application of the strike penalties was unjust, and so invoked their discretion (in my view) inappropriately. If folks don't expect the penalty will be applied because the judges won't apply it, the law's useless even if it's great in theory. 


• Is there any simpler explanation for the meth-mess than that Housing New Zealand had excess demand for houses and using an insanely sensitive hair-trigger for evictions let them free up some houses? Plus the usual stories around how agencies are more likely to be punished for not being sufficiently risk-averse than for being too risk-averse? 


• And, finally, some good news. Catherine Healy is now Dame Catherine Healy. She heads the New Zealand Prostitutes' Collective and helped see prostitution legalised in 2003. And how can you not love a union that, on seeing abuses of migrants on temporary visas illegally working in the sex industry, argues for legalising their work too instead of having more labour inspectors going around to deport competitors? America's ahead of us on marijuana reform, but we're miles ahead on this one. Too many Honours go to career public servants whose main merit was having diligently undertaken their day-job for 40 years. This one isn't like that. 


• David Friedman at Oxford Union on market failure. HT: Jim Rose.  

3 strikes, redux

We still don't know what effect New Zealand's 3-strikes law has had on recidivism.

Graeme Edgeler had undertaken a bit of ocular least squares last year; I'd commented on it here. It then looked like the number of second strikes had dropped, although the conclusion was still tentative. It turns out that the data Graeme was using wasn't as comparable across the two time periods as he had thought, and so he retracted his post. I've updated my post as consequence.

In theory, the law should be effective and at lower cost than American alternatives, for the reasons I laid out here. The American version gets rid of marginal deterrence by having the same hefty penalty across broad categories of offending, so you may expect a severity shift in offending among third-strike offences. New Zealand sets things on the third strike to the maximum penalty for the offence, without parole, unless it would be manifestly unjust to impose the penalty without parole, so proportionality across offence categories is maintained. 

Judges so far seem to be undermining Parliament's intent in the legislation. The two second-strike cases that have come up involving murder, where judges are to impose the maximum sentence without parole unless the 'without parole' provision were manifestly unjust, have both had the non-parole period waived as being manifestly unjust; the only third strike offence so far has also used the 'manifestly unjust' provision for waiving of the without-parole condition. Radio New Zealand reports on the three cases here. 

It would not take many more uses of that provision before offenders expected that judges had no intention of following Parliament's intent, and so deterrence would be lost. Maybe each of the three cases so far really are the exceptions that Parliament intended have this kind of exception. But say that the provision were intended for 10% of cases. The odds that the only three to come up all happened to be manifestly unjust are one in a thousand. Is it more likely that we are seeing the one-in-a-thousand sequence, or that the judges have little intention of following Parliament's intent?  

And so any future empirical study might expect a rise in strikeable offences from 2017 onwards, as judicial credibility diminished - barring changes in sentencing practice that change expectations.

UPDATE: In comments below, Andrew Geddis notes it's been five second-strike murders, and that the judges deemed applying Parliament's intended sentence in all cases would be manifestly unjust. I doubt that's an accident. 

3 Strikes

It looks like New Zealand's version of three-strikes for criminal offending is working. Here's Graeme Edgeler's analysis. [IMPORTANT UPDATE December 2016 - SEE BELOW]

You need to be careful when crafting OIA questions around this sort of comparison, and I am relying on the Ministry of Justice to have correctly understood my intention. It is not enough to compare the number of convictions before and after the law change. Almost a third of convictions for “strike” offences since three strikes was enacted haven’t attracted first warnings because they relate to offending that occurred before the law change. You need to exclude similar offending in the comparison.

Between 1 June 2005 and 31 May 2010, 6809 people received convictions for strike offences that occurred between 1 June 2005 and 31 May 2010.

Between 1 June 2010 and 31 May 2015, 5422 people received convictions for strike offences that occurred between 1 June 2010 and 31 May 2015. So strike crime is down around 20% since three strikes came into effect. Claiming cause and effect over something like that is the type of intractable debate that you get into over the effect of longer prison sentences. But what we are looking at is not the general deterrent effect of three strikes (fear of punishment in the public at large), but specific deterrence: fear of punishment by those who have a conviction for strike offending who have been personally warned by a judge that further strike offending is treated very seriously. And that is where we can check the comparison between the five years before three strikes and the five years after it.

We know there were 81 second strikes in the first five years of three strikes. These are people who have been convicted for committing a strike offence after the law came into force, and subsequent to that conviction, been convicted of a further strike offence, itself committed after their earlier conviction occurred. The pre-strike comparison therefore needs to be people convicted of an offence committed after 1 June 2005 (but before 31 May 2010), who were then convicted before 31 May 2010 of a further offence committed after that conviction. And it turn out that that number is a lot higher. Had the three strikes law been in place on 1 June 2005, the following five years would have seen 256 offenders receive second strikes.

Now, strike crime is down in general, but the ~20% fall in strike offending is dwarfed by the ~62% fall in strike recidivism.

And here's where it gets really interesting:

Because of the lack of retrospectivity in our three strikes law, two people convicted on the same day, in respect of the same charge can have different strike consequences: someone convicted for offending that occurred after the law came into force receives a strike warning, but someone convicted of an offence committed before the law was enacted receives no warning.

A comparison between these two groups may help confirm or quash the alternative hypothesis that some change in treatment is the cause of the substantial reduction in strike recidivism.

In the first 4 years and 7 months of three strikes (curse you tier one statistics!), 2437 people have been convicted of strike offending that did not result in a strike warning, and of those, 360 had subsequently earned a first warning for an offence committed after that conviction. That’s a strike recidivism rate over 1000% higher among those who didn’t receive a warning than those who did. Of course, this direct comparison is misleading, as the post-strike convictions for pre-strike offending will be front-loaded, occurring on average much earlier in the ~5 year period since three strikes was enacted, and thus allowing more time for strike-level recidivism to occur. However, it remains useful, as it provides evidence to negate the alternative explanation for the pre-strike/post-strike comparison of much improved recidivism treatment.

And that is what we are left with: in the first five years of three strikes, there were 81 second strike convictions. In the five year before three strikes, there would have been 256.

81 second strikes seemed low. Now we know it is.

It looks like everything is there for a proper full difference-in-difference analysis, but ocular least squares here seems to be pretty strong.

A full set-up would compare the year t+1, t+2, t+3 and so on recidivism rates of those convicted of a first strike offence for offending that happened before and after the regime and of other offences before and after the regime.

Were I at Canterbury, I'd be begging Graeme for his data as basis for setting a Masters thesis and putting in the OIA requests for the finer-grained data that could let it happen.

UPDATE: Graeme has found that his early and later data was not comparable, and so has retracted this analysis.

Sentencing floors

Dan Gardner is right that mandatory minimum sentencing often yields perverse outcomes.

Now look at that first mandatory minimum sentence again: It means that anyone who grows six marijuana plants with the intention of sharing even a single joint with a friend will be guilty of an offence punishable with a mandatory minimum sentence of six months in jail.

And remember the phrase "real property that belongs to a third party"? That's what a rented apartment is. Imagine a university student living in a rented apartment with her boyfriend, suggests University of Toronto criminologist Tony Doob. She grows a single marijuana plant. She rolls a joint for her and her boyfriend. And just like that she's a "trafficker" subject to a mandatory minimum sentence of nine months in jail.

Are these outcomes simple, clear, and predictable? Hardly. They're shocking as hell. But mandatory minimums have a nasty tendency to do that.

He argues mandatory minimum sentencing has no deterrent effect. I'm not familiar with that literature, but mandatory minimums in the form of three-strikes legislation have substantial deterrence effects. They just may not be worth the candle.

Gardner nails one other point though:

But mandatory minimums don't actually do away with discretion.

They merely transfer it from judges, by restricting their ability to choose the sentence, to prosecutors, who choose the charge. The system is still ambiguous, uncertain, and unpredictable. It's just ambiguous, uncertain, and unpredictable in a different way.

Discretion lets prosecutors extract plea bargains to lesser charges from risk-averse defendants facing ridiculous minimum sentencing if convicted.

Minimum penalties and prosecutorial power [Updated]

A reasonable critique of minimum sentencing laws, and consequently of three-strikes legislation: they let prosecutors force plea bargains for offences without such minima because accused parties fear erroneous conviction and high penalties. Here's the New York Times (HT: all over Twitter)

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.” One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places. Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

I wonder whether this effect has contaminated the studies on California's Three Strikes law. Recall that we've seen a big decline in strikeable offences and a smaller increase in non-strikeable offences. The argument has been that some of the decline in strikeable offences has been due to criminals substituting into offences carrying lesser potential sentence. Some of that substitution could just be the exercise of prosecutorial discretion in coercing a guilty plea on a non-strikeable offence where the accused fears the risk of taking a potential strikeable charge to trial. The effect can't be that large though: if it were all that kind of prosecutorial substitution, we'd expect the increase in non-strikeable offences to be larger relative to the decline in strikeable offences. UPDATE: Iyengar's work uses arrest data rather than conviction, and Shepherd's is all on crime rates. So unlikely to be a problem. See comments below, thanks to Lemmus!

I don't know the extent to which plea bargain is used in New Zealand. But this will be something to watch for as our three-strikes legislation becomes binding on more accused.

Previously:

• Is three strikes working?
• Marginal deterrence for the incarcerated
• A good strike
• Against the death penalty
• In favour of flogging

Is three strikes working?

I really don't know. But this isn't the test:

News that there are now 132 violent and sexual offenders who have been convicted of a 'Strike' offence and given their first 'Strike' warning comes as no surprise and simply serves to highlight that the 'Three Strikes' policy is working exactly as ACT intended, ACT New Zealand Justice Spokesman Hilary Calvert said today.

"These offenders now know their behaviour will not be tolerated, and will be well aware of the consequences of further similar offending," Ms Calvert said.

Here's the test. Take the set of all offences going back a few years. If there's a decrease post Three-Strikes coming into effect in those offences on the strike list relative to non-strikeable offences, Three-Strikes is effective. If not, it isn't, or at least isn't so far.

If New Zealand follows American experience, we ought to see a decrease even in first-strike offences, but a small increase in non-strikeable offences as offenders substitute into categories that have lower long-run cost. We might also see a severity shift within the list of strikeable offences: fewer of the lowest severity crimes (substitution down into non-strikeable offences) and a higher proportion of the more severe strikeable offences (as the granting of a first strike acts as a level shift in the severity of future sentences, though marginal deterrence is maintained within the second strike).

Give it another year or so, then run the test. If nobody else has done anything on it by early next year, I'll assign it as an honours project.

I prefer staking out what an appropriate test would be before taking it to the data.

Marginal deterrence for the incarcerated

The most sensible critique I've heard of National's Three Strikes policy for New Zealand is that the abolition of parole gets rid of marginal deterrence for inmates.  If time off for good behaviour is gone, then there's no incentive for good behaviour.  And that can be pretty costly.  Of course, this could be fixed by "added time on for bad behaviour", but it's pretty plausible that the administrative costs of the parole regime are a lot lower than the extra time when it comes to burden of proof issues.  An alternative framework would keep the Three Strikes law as it is, but add on an extra margin to all sentences that would be abated in case of good behaviour.

@CrimeEconomist points to some decent evidence favouring ensuring that there's always a margin.

"They said, 'Commissioner, you've got to get them something,'" recalls Epps. "'You've got these guys locked up in a cell, 80 square feet, with Plexi on the door. It's not air-conditioned. So when they shout out or hurt someone, what can you do?'"

After consulting with Sparkman, Epps decided the MDOC would try a different -- and deeply counterintuitive -- approach. It would respond to the worst outbreak of prison violence in recent history by loosening the controls on Unit 32. The inmates would be given a chance to return to the general prison population by displaying good behavior. Unit 32 would have group dining, recreational activities and even classes.

After all, says Sparkman, "What have we got to lose?"

 It worked.  And so too did their enhanced parole system.

By November, the change in attitudes and operations at Unit 32 was palpable. So was the improvement in relations between the MDOC and ACLU. In November, the MDOC entered into a supplemental consent decree with the group, this one focused on classification, mental illnesses and use of force. Austin and Kupers, who had first come to Unit 32 as expert witnesses for the plaintiffs, now effectively became consultants to the MDOC in improving conditions. It was clear that the effort to reform Unit 32 was on the cusp of becoming a major success. But instead of pausing to savor Unit 32's transformation, Epps pushed for something even more ambitious, changing the 1995 "truth in sentencing law" that had doubled Mississippi's incarceration rate and tripled its costs.

For help in the statehouse, Epps turned to Simmons, who introduced SB 2136, which made nonviolent offenders eligible for parole after serving 25 percent of their sentences. One of the law's unusual features was that it was retroactive: As written, some 3,000 inmates -- 12 percent of the state's prison population -- would become eligible for parole immediately, if the governor signed the bill -- which he did in April 2009.

Of course, eligibility for parole does not automatically result in inmates being granted parole. Those decisions resided with a state Parole Board, whose members were appointed by the governor. To ensure that the board increased its rate of parole, Epps turned once again to Austin, who developed a parole "risk instrument" based on a generation of peer-reviewed research about which inmates are likely to recidivate and which aren't. Previously parole members had relied mainly on their guts. With the new instrument in place, the parole grant rate soared, from roughly 30 percent to more than half. As the result of the new law, between April 2009 and August 2009, 3,100 inmates were reduced early, with virtually no public notice and no controversy. Had the state Legislature not passed the bill that raised the parole rate, Austin estimates that state lawmakers would have had to add another 5,000 beds to the prison system over the course of the next decade, at a cost of around $200 million.

My best read of the evidence is that increased use of incarceration was responsible for the biggest part of the explainable part of the drop in crime rates in the US in the 1990s.  But there are lots and lots and lots of people in prison who don't need to be there.  The bang for the buck is in keeping locked up the habitual violent offenders and in ensuring that penalties for repeat violent offending are harsher than for first time offending.  But subjecting minor drug users and dealers to mandatory lengthy sentences is a good way of ramping up the costs of prison with no particular benefit for the folks paying to keep them in prison.

Three strikes, and politics as mind-killer

Labour apparently has obtained under OIA the Ministry of Justice's analysis of New Zealand's proposed Three-Strikes Law. From the pages Labour has chosen to release on its blog, we see that the Office of the Minister of Police & Corrections recommended three changes to the Bill:

• Changing a qualifying strike from a five year sentence for a qualifying offense to any conviction for a qualifying offense [making it more strict];
• Changing a third strike penalty from life without parole for 25 years to maximum offense penalty without parole [maintaining marginal deterrence nicely]; and,
• removing a couple of items from the list of qualifying offenses.

We also see that they're estimating less than a 2% increase in the prison population.

They then summarize the American literature, reaching much the same conclusion that I'd reached: strike laws very likely reduce crime, most likely through deterrence rather than by incapacitation, and that eliminating marginal deterrence is a really bad idea because there's then some chance that murders increase among third strike offenders. That's probably why they recommended changing the third strike penalty, and very reasonably so.

Finally, they give a regulatory impact analysis. They figure costs on the prison system will be small and, as they didn't quantify the deterrence effects, their estimates will be more of an upper bound than a median.

That all sounds pretty reasonable.

Of course, the Labour Party blog certainly doesn't make it sound reasonable. Here's their screaming headline:

"3 strikes law could increase murders – Nats’ secret official advice"

The post then goes into hysterics on the one bit of the document that sensibly found that result in the American literature where there's no difference in punishment between murder and other third strike offences. And, of course, Justice recommended changes to avoid that result and, best I understand things, the compromise between National and Act implemented those changes. So, the better headline, "Three strikes law could have increased murders among third strike offenders had they not changed the proposed legislation back in December, but now there's really nothing to worry about on that front so do carry on...".

Politics remains the mind-killer.

I do wish the whole document would be released somewhere. But if the pages Labour has put up are the ones they reckon most damning, either they're idiots or there's really nothing damning in there.

Three strikes law for NZ?

The ACT party put forward a bill proposing a three-strikes rule that, in its initial form, eliminated marginal deterrence at the third strike: 25 year sentence on third strike regardless of the offense. Of course, we know this can induce a severity shift among offenses on the strike list and provides little inducement for criminals to leave witnesses hanging about.

Kiwiblog reports that negotiations between ACT and National has led to a bill that National would support at second reading which would require judges to impose the maximum penalty on a third strike. Where Farrar emphasizes the fairness aspects of not having relatively minor offenses draw a 25-year sentence, I'm far more interested in the maintenance of marginal deterrence. Having the third strike draw the maximum sentence for that offense does a pretty good job: there's no reason to expect a severity shift among offenses since they all still draw differential penalties. Perhaps we could expect such a shift within a particular offense, but that can't have too large an effect.

Joanna Shepherd's work shows rather convincingly that strike-type legislation in California was remarkably successful in deterring even first strikes. The approach here proposed would avoid some of the worse potential consequences of the California law (severity shift, excessive prison costs) while keeping a decent chunk of the benefits.

We'll have to wait for the final bill that comes through. There are lots of ways of maintaining marginal deterrence:

• Second strike: maximum penalty; Third strike: some multiple of the maximum
• Second strike: minimum penalty is no less than 75th percentile of penalties awarded on first strike for that offense; Third strike: maximum penalty
• If you were paroled after 1/3 of your sentence on the prior strike, adding 2/3 to your next-strike sentence

David Friedman's work shows reasonably convincingly that you need to have a higher penalty for a second offence than for a first one just to maintain deterrence; maintaining marginal deterrence then also requires that there aren't flat portions of the expected punishment curve across severity of offence. Lots of ways of achieving that, but a mandatory 25-year sentence for any third-strike isn't one of them.