Crime and punishment don’t add up

South Africa is often branded as a country with a high incarceration rate. In certain respects, this is true. For with 290 people per 100 000 imprisoned, it has the highest incarceration rate in Africa. But there is much more to prison population rates than a national headcount of bodies behind bars.

About two-thirds of the South African prison population have been sentenced to prison. The remaining third are awaiting-trial detainees.

One-third is a fairly standard proportion for a developing country whose criminal justice system is burdened by high crime rates and consequent backlogs in administration. Britain has an awaiting-trial population that makes up 14% of its prison population.

The figure for Nigeria is 70%. South Africa’s rate is substantially lower than Nigeria’s, probably because we are convicting at least some of the people who enter the criminal justice system – something the rest of the region is failing to do.

It’s interesting, then, that we send fewer people to prison than we did 20 years ago. In 1995 people were being sentenced to terms of imprisonment at a rate of almost 290 per 100 000. In 2014 that figure was 210.

The more radical shift has been in the profile of the prison population. In 1995 there were 443 offenders serving sentences of life imprisonment, less than 0.5% of the total sentenced population. In 2014 there were 13 190, accounting for 12% of the sentenced population.

That’s nearly a thirtyfold increase. Currently, more offenders are serving life sentences in South African prisons than ever before.

During the same period the number of offenders serving sentences of more than 20 years has increased 5.25 times; 15 to 20 years, 4.8 times; and 10 to 15 years, 3.5 times. The opposite is true for all the shorter sentence categories.

These figures may explain why the prison population has increased by 24%, despite the rate of sentencing having dropped since 1995. Although fewer people are being sent to prison, those who are incarcerated spend much longer there than ever before.

Probably the most important contributing factor to the change in the sentenced prison population was the establishment of mandatory minimum sentencing legislation – the Criminal Law Amendment Act of 1997, which restricted the discretion of judges to depart from minimum sentences ranging from 15 years to life for certain serious offences.

The Act came into effect at a time when violent crime was at an all-time high and an anxious public was looking to the government for solutions and the imposition of criminal sanctions in line with the desire for retribution. As in many other countries, the response was a surge in militarised force and episodic saturation policing. And mandatory minimums.

Interestingly, the minimum sentencing provisions of the Act were intended initially to be temporary. But the president extended their period of operation on three occasions, until they were made into a permanent feature of South African legislation in December 2007.

Unsurprisingly, between 1995 and 2000, the prison population soared: from under 120 000 to over 170 000. At best, though, minimum mandatory provisions serve only one goal: retribution. And this particular form of retribution comes at enormous cost to South Africans. Here is why.

First, an offender serving a sentence of life has lost hope. There is a chance he or she will be paroled, but the minimum period an offender must serve before being eligible for parole is 25 years. The indeterminacy and uncertainty accompanying a sentence of this nature, along with the isolation, loss of community and family ties that life imprisonment (or any severe sentence) necessitates, have the expected effect.

Research shows that long-term offenders display more problems, both psychological and social, than short-term offenders and negative reactions to the prison structure increase as an offender’s sentence progresses.

Many of us are unlikely to be moved by this. Our country is racked by violent crime. But we must acknowledge our failure to achieve one objective of the Correctional Services Act: “promoting the social responsibility and human development of all prisoners”.

The second factor is cost. We are spending an enormous amount of money on accommodating people in prisons: R10 000 a month per prisoner. And for what? People who commit crimes will, for the most part, reoffend unless rehabilitated. More than 50% of the budget is spent on “incarceration” and less than 5% on “social reintegration”.

“Rehabilitation” and “care” receive about 14%. It shows. There has never been any kind of meaningful relationship between incarceration rate and crime rate in South Africa. If anything, interpersonal violence increased at much the same point in time as the prison population.

Moreover, harsher penalties have never been shown to have a deterrent effect on behaviour or a positive outcome in respect of public safety. Certainly, a term of imprisonment incapacitates an offender. But there is significant research indicating that harsher sentences lead to an increase in the rate of further offences and reduce the chances of rehabilitation.

What does deter crime is the certainty of prosecution. Sadly, we are not doing well on that score. In 2000, when violent crime was near its peak, 610 000 of the 2.6-million crimes recorded by the South African Police Service were referred to the National Prosecuting Authority for prosecution.

The NPA took on only 271 000 of those matters, which resulted in 210 000 convictions. So although the NPA was able to secure an impressive number of guilty verdicts, these convictions amounted to only 8% of crimes recorded.

The third factor is the socioeconomic consequences of imprisonment. In addition to the obvious economic consequences of losing a breadwinner, there are a number of profoundly worrying outcomes in respect of the minor children who have an incarcerated parent. There is now ample research from the United States indicating that excessively long sentences are the leading cause of family poverty, juvenile delinquency, poor academic performance, depression and mental illness.

Children in the US with an incarcerated parent have an imprisonment rate six times that of children who don’t. There is no reason to suspect the figures would be any different in South Africa. As in the US, certain groups of people are over-represented in the prison population. For every white person in prison, for example, there are about 12 coloured people. This means that whole communities are and will remain plagued by the devastating consequences of incarceration.

Perhaps we’re okay with this: a penal system that serves to mete out punishment at great expense to a select group of society and, in turn, perpetuates a cycle of deprivation and delinquency. But if we are, then we need to own up to it.

There is too much information out there to ignore the effects of the penal system we have chosen. I use the word “chosen” loosely, given that our prison legislation suggests we once imagined a prison environment founded on the right to dignity and thus the care and rehabilitation of offenders. How odd, then, that we cling to a sentencing regime that serves the single goal of retribution.

Clare Ballard is an attorney in the penal reform programme at Lawyers for Human Rights

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