The early release of Pistorius was a virtual certainty from the day he was sentenced.
The decision to release South African athlete Oscar Pistorius on correctional supervision in August, having served just 10 months of a five-year sentence for culpable homicide, was predictably met with media outrage. Many suggested that he was getting special treatment because of his fame and wealth.
These allegations, while intuitively appealing, are without factual basis. Few sentences issued are served out in their entirety. This is standard criminal justice practice globally, not just in South Africa.
The government’s appeal of Pistorius’s verdict is to be heard in November. The state wants him convicted of murder, which, if successful, would carry serious sentencing implications.
But the early release of Pistorius – convicted of culpable homicide in the death of his girlfriend, Reeva Steenkamp – was a virtual certainty from the day he was sentenced.
Correctional supervision
The rules governing the structure of a particular sentence depend on the provision of law under which it was issued. In Pistorius’s case, it was likely that he would serve 10 months in prison as he was sentenced under Section 276(1)(i) of the Criminal Procedure Act 51 of 1977.
This section is applicable for sentences not exceeding five years. It entitles the commissioner of correctional services and the parole board to place the prisoner under correctional supervision after the prisoner has served no less than one-sixth of the sentence.
Where the prisoner has behaved well in prison, shown good prospects for rehabilitation and is not considered a danger to society, it is standard practice to release them on correctional supervision at the one-sixth mark.
But, being released on correctional supervision is not a get-out-of-jail-free card. Punishment is not terminated but instead meted out in the community rather than in prison. Courts have been at pains to stress that community supervision is not a soft option and, owing to the various conditions attached to the release, has considerable punitive content and constitutes a significant impairment of the liberty of the offender.
The conditions of Pistorius’s release have not been made public. But typical conditions include house arrest, monitoring, community service, seeking/placement in employment, payment of compensation to the victim and participation in treatment, development and support programmes.
Not only can the conditions of correctional supervision be made appropriately punitive but there are significant benefits to society, financially and socially, of punishing offenders in the community. Prison costs the taxpayer dearly. The daily cost of accommodating a prisoner is R329.20. This amounts to just under R10 000 a month and more than R118 500 a year.
If an offender can shoulder some of the expense of their punishment – without putting the public at risk – it is right that they do so.
Extended time in prison increases the likelihood that the offender will become a strain on society when released, either through becoming unemployable or through the well-documented cycle of violence in prison that sends people back into society more damaged, having increased their criminal contacts and desocialised from the outside world.
Far from being a deterrent from serious crime, prisons contribute to a cycle of offending and should be reserved for use in the most serious of cases.
Oscar not odd one out
That Pistorius was sentenced to a portion of direct imprisonment at all displays the extent to which the court classified his conduct as serious. This is evident when comparing his case to other similarly situated cases, where a conviction of culpable homicide has resulted from killing a person in the mistaken belief that they were an intruder.
Most of these cases do not result in direct imprisonment.
- In 2003, a Mr Dougherty was convicted of culpable homicide after shooting dead an unarmed man on the street near his house. Dougherty suspected him of robbing his house guests. He received three years’ correctional supervision.
- In 2004, Rudi “Vleis” Visagie, a well-known rugby player, mistakenly shot and killed his daughter. She was driving out of the family home in the early hours of the morning. Visagie saw the car and mistakenly assumed it was being stolen and, without checking, fired a shot at the driver, killing his daughter. The National Prosecuting Authority decided not to prosecute this case at all, believing that the tragic circumstance of the accident was sufficient punishment.
- In 2013, just days after Steenkamp was shot, businessman and preacher Siyabonga Mdunge concluded a plea bargain with the state for shooting and killing his wife through the toilet door in the early hours of the morning in the mistaken belief she was an intruder. He received a sentence of eight years’ imprisonment, wholly suspended for five years. This meant he spent no time in prison at all.
Viewed alongside these cases, Pistorius has been sentenced on the harsher end of the spectrum. It appears that the public discontent with his sentence is connected to the fact that many people still believe he murdered Steenkamp. But after engaging with the evidence presented, that was not the finding of the court.
Pistorius was convicted of culpable homicide for what was essentially deemed a tragic accident. In light of that verdict, Pistorius has not been subject to any special treatment in terms of his sentence. He has been treated the same as anyone else sentenced under the same provision.
South Africa, like most modern democracies, follows the rule of law. This means that society should be governed by the law, rather than arbitrary, individualised decisions that may be subject to abuse. The state’s abuse of the criminal justice system during apartheid is a vivid reminder of the importance of this.
The court’s finding in the Pistorius matter, and the state’s meting out of his sentence, might be unpopular. But they are utterly in keeping with a consistent application of the current law. The rule of law must always persevere, even in the face of an unpopular verdict.
This article first appeared on The Conversation.
Kelly Phelps is a senior lecturer in criminal justice at the University of Cape Town.
