Clare Ballard | The way we punish


27 April 2015 – 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 head count of bodies behind bars.

More meaningful assessments of the health of a criminal justice system are the respective proportions of the country’s sentenced and awaiting trial populations. Approximately two thirds of the South African prison population have been convicted and sentenced. The remaining third are awaiting trial detainees. This is a fairly standard proportion for a developing country whose criminal justice system is burdened by high crime rates and the consequent backlogs in administration. The United Kingdom, for example, has an awaiting trial population that makes up 14% of its prison population. The figure for Nigeria, on the other hand, is 70%. So, yes, compared to the rest of Africa we have a high incarceration rate, but that’s probably got a lot to do with the fact that we are convicting most of the people who enter the criminal justice system — something the rest of the region is simply failing to do.

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

The more radical shift, however, 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.

Thats an increase of almost 3000%.

So, currently, there are more offenders serving sentences of life imprisonment in South African prisons than ever before. The same goes for offenders serving longer sentences generally, for during the same period the number of offenders serving sentences of more than 20 years has increased by 425%, 15 to 20 years by 383% and 10 to 15 years by 246%. 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 gone down since 1995. Although fewer people are being sent to prison, they are spending 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 (‘CLAA’). The CLAA restricted rigorously the discretion of judges to depart from minimum sentences ranging from 15 years’ to life imprisonment for certain serious offences.

The CLAA came into effect at a time when violent crime was at an all-time high and an anxious general public was looking to the government for solutions and the imposition of criminal sanctions commensurate with the desire for retribution. As has been the practice of many countries, the response was a surge in militarised force and episodic saturation policing — and mandatory minimums. Interestingly, the minimum sentencing provisions of the CLAA were intended initially to be a temporary measure. The President extended their period of operation, however, on three occasions until they were made into a permanent feature of South African legislation in December 2007. Unsurprisingly, it was between 1995 and 2000 that the prison population soared: from just under 120 000 to just over 170 000.

The point is this: At best, there is one value that minimum mandatory provisions serve, and that is retribution. And this particular form of retribution comes at enormous cost to South Africans. Here is why.

Firstly, an offender serving a sentence of life imprisonment is a different type of prisoner. He or she has lost hope. There is a chance that 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 social isolation, loss of community and familial ties that a sentence of life imprisonment (or any severe sentence for that matter) necessitates, have the obvious negative impact that one would expect. Research indicates that long-term offenders display many more problems, both psychological and social, than do short-term offenders and that negative reactions to the prison structure actually increase as an offender’s sentence progresses.

I am fully aware that there are many of us who are unlikely to be particularly moved by this information. We are, after all, a country wracked with violent crime and we are sick to death of it.  At the very least, however, we need to acknowledge that we are failing to achieve one of the objectives of the correctional system itself as spelt out clearly in 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 per month per prisoner. And for what? People that 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%. And it shows. There has never been any kind of meaningful relationship between the incarceration rate and the 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 offending behaviour or a positive outcome in respect of public safety. Certainly, a term of imprisonment incapacitates an offender. But there is a significant amount of research indicating that harsher sentences lead to an increase in recidivism rates and reduce the chances of rehabilitation.

What does deter crime is the certainty of prosecution. Sadly, we are not doing so well on that score. In 2000, for example, 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 then resulted in 210 000 convictions. Thus, although the NPA was able to secure an impressive number of guilty verdicts, these convictions amounted to only 8% of the crimes recorded.

The third factor is the socio-economic consequences of imprisonment. In addition to the obvious economic consequences of losing a bread winner, 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 and depression and mental illness. A particularly stunning documented long-term consequence is intergenerational incarceration: children in the United States with an incarcerated parent have an imprisonment rate six times that of children who do not. There is no reason to suspect that the figures would be any different in South Africa.  Just like the United States, certain groups of people are overrepresented in the prison population. For every white person in prison, for example,  there are approximately twelve 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 simply too much information out there to ignore the effects of the penal system we have chosen. I use the word “chosen” loosely given the fact that our prison legislation suggests that we once envisioned 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.

This post was originally published on Groundup.

Clare Ballard

About Clare Ballard

Clare, an attorney, established Lawyers for Human Rights' Penal Reform Programme in July 2014. Prior to that she was a researcher at the Community Law Centre (University of the Western Cape), focusing on constitutional law and penology. Clare has a Bachelor of Arts and an LLB from the University of Cape Town, and an LLM from Cornell University. She is also a former clerk of the Constitutional Court of South Africa and has lectured on and practiced in the field of child justice.