Our Bursting Prisons
by
Hannes Fagan
Hannes Fagan is the Inspecting Judge of Prisons.
Article to appear in The Advocate, April, 2005.
Our prisons are grossly overcrowded. With space for 113 825, we have 186 546 prisoners crammed in, i.e. 73 000 above capacity.1 It leads to awful conditions in numerous of our 240 prisons. For example, Umtata Medium with capacity for 580 is holding 2 188 prisoners; Johannesburg Medium B with capacity for 1 300 is holding 4 697 and Pietermaritzburg with capacity for 1 330 is holding 3 662 prisoners. Human rights' deprivations are commonplace under such crowded conditions and instead of rehabilitation centres, the overcrowding turns our prisons into crime-promoting institutions.
The overcrowding is due to our huge prison population. 4 out of every 1 000 South Africans are in prison. We are one of the worst countries in the world, and the worst in Africa, in our use of incarceration.2
Less prisoners essential
Our immediate aim must be to reduce our prison population to about 120 000. That will still place us at almost double the world average but will bring considerable relief.
During the period 1995 to 2000, the increase in our prisoner population was caused mainly by the explosion in the number of awaiting-trial prisoners from 24 265 in January 1995 to 63 964 in April 2000. Since April 2000 the number of awaiting-trial prisoners has decreased, owing to the concerted efforts of inter alia the police, the prosecutors, the magistrates, the judges, the heads of prison and NICRO with its diversion programmes.
The steady decline in the number of awaiting-trial prisoners to the latest figure of 49 438 in September 2004 is most welcome. It must now continue down to the target figure of 20 000 such prisoners.
Number of awaiting-trial prisoners
(Note seasonal variation)
The praiseworthy efforts to reduce the number of awaiting-trial prisoners are however nullified by the increase in the sentenced prisoner population.
The growth in the number of sentenced prisoners is being fuelled by a dramatic increase in the length of prison terms. The primary cause is the minimum sentence legislation.
Minimum Sentences
In 1997 Parliament feared that crime was getting out of hand and in the belief that long sentences would act as a deterrent (and possibly also to placate the public after the abolition of the death sentence), passed the minimum sentence legislation (Criminal Law Amendment Act 105 of 1997). Minimum sentences of 5, 7, 10, 15, 20, 25 years and life were introduced for a variety of offences including categories of theft, corruption, drug dealing, assault, rape and murder. It obliged a judge and magistrate to impose not less than the prescribed minimum sentence unless substantial and compelling circumstances justified a lesser sentencey. Suspension of any part of such sentence was prohibited. Bail was also made more difficult to obtain by s 4(f) of the Criminal Procedure Second Amendment Act 85 of 1997.
As the minimum sentence legislation was regarded as an emergency measure, it ceased to have effect two years after its commencement on 1 May 1998 unless extended by the President with the concurrence of Parliament. It has since been extended to 30 April 2005.
The effect of the minimum sentence legislation has been to greatly increase the number of prisoners serving long and life sentences. It has resulted in a major shift in the length of prison terms as indicated in the diagrams hereunder.
Effect of Minimum Sentence Legislation on prison numbers
Sentences of 7 years and less showed little change from 1997 (67 535) to 2004 (67 483), while sentences of more than 7 years increased rapidly from 1997 (29 376) to 2004 (67 081).
Life sentences increased from 638 in 1997 to 5 511 on 30 September 2004.
Prison populations have changed substantially. In April 1998, immediately before the implementation of the minimum sentence legislation, only 18 644 (19%) of the sentenced prisoners were serving a term of longer than 10 years. This has since increased to 49 094 (36%).
| Sentenced groups 30 April 1998 | Sentenced groups 30 Sept 2004 |
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Previous release policies
Release after 1/3rd
The Correctional Services Act 8 of 1959 provided that a prisoner could be placed on parole after serving half his sentence, less credits earned.3 The general rule was that prisoners could be released on parole after serving one third of their sentences.4 That would be done by the Commissioner of Correctional Services on recommendation of a parole board.
10 years for life prisoners
Prisoners serving life sentences could be considered for parole after serving ten years.5 A parole board would report to the National Advisory Council who would make a recommendation to the Minister whether to place the prisoner on parole.6 About 1996/97 the policy changed and life prisoners, although they could still be released after 15 years, were generally considered for parole only after serving 20 years.
The Correctional Services Act 111 of 1998
The Correctional Services Act 111 of 1998 (the Act) was passed by Parliament in November 1998 but its date of commencement still had to be proclaimed (s138 of the Act).
On 19 February 1999, sections 1, 83-95, 97,103-130, 134-136 and 138 were put into operation. Sections 83 and 84 established the National Council for Correctional Services.7 Sections 85 to 94 established the Judicial Inspectorate. Sections 103-112 dealt with Joint Venture Prisons. Sections 113 to 129 dealt with Offences.
Not retrospective
Section 136 provides that the release of prisoners already serving sentences shall not be affected by the Act and would be dealt with in terms of the Correctional Services Act 8 of 1959 and the policy and guidelines formerly applied (i.e. ½ minus credits down to 1/3rd).
Prisoners already serving life sentences are to be considered for parole after 20 years. On 1 July 1999 section 5 and on 25 February 2000 section 3 came into operation. In 2001 the Act was amended. On 31 July 2004 sections 2, 4, 6-49, 96-102 and 131-133 came into operation. They set out in detail the manner in which prisoners should be held and treated. Further detail is contained in Regulations promulgated also on 31 July 2004.
New release provisions
On 1 October 2004 the remaining sections of the Act, i.e. sections 50-82 came into operation. They deal with Community Corrections (ss 50-72) and Release from Prison and Placement under Correctional Supervision and on Day Parole and Parole (ss 73-82).
A prisoner will have to serve half of his sentence before consideration for parole (s 73(6)(a)). A life prisoner will have to serve 25 years and may then be granted parole by the court on the recommendation of the Correctional Supervision and Parole Board (ss 73(6)(b)(iv), 75(1)(c),78(1)). A prisoner sentenced in terms of the minimum sentence legislation will have to serve four fifths of his sentence or 25 years before consideration for parole (s 73(6)(b)(v)).
Accordingly, the earliest that parole can be considered has moved from one third to one half and for many prisoners to four fifths of their sentences. For those serving life it has gone up from 10 to 20 and now 25 years plus substitution of "the court" for the National Council for Correctional Services.
An impossible state of overcrowding
Implementation of the new release provisions will lead to an even more intolerable overcrowding situation. Increases in the serving of sentences from a third to a half as well as to four fifths and from 10 to 20 to 25 years for life imprisonment plus reference to a court (the court who imposed the sentence?) will inevitably lead to very many more prisoners in our already overcrowded prisons.
Long sentences
The numbers continue to rise. The latest available figures (30 September 2004) show 5 511 prisoners serving life sentences compared to 4 460 twelve months earlier plus 43 583 serving longer than 10 years compared to 40 056 in September 2003. Our sentenced prisoner population has increased by 28 801 prisoners since April 2000, despite about 7000 being released on nine months' advanced parole in September 2003. The growth rate of more than 7 500 per year will inevitably lead to such inhumane conditions that mass releases will be required periodically.
Growth in prison population
Minimum sentence legislation should not be extended
The Minimum Sentence Legislation should not be extended beyond 30 April 2005 for the following reasons:
- The legislation was brought in as a temporary measure because of the perception that crime was getting out of control and the belief that the remedy lay in harsh sentencing. The latest figures produced by SAPS indicate a considerable reduction in crime and there is accordingly no justification for extending the legislation.
- The increase in the number of prisoners due to the minimum sentence legislation has made our prisons terribly overcrowded and it is worsening by the day. In numerous prisons the conditions of detention are truly awful and in clear breach of our Constitution and the requirements of Act 111 of 1998 and the Regulations.
- The harsh sentences display a vengeful, uncaring and unforgiving attitude completely contrary to our famed national trait of understanding and forgiveness.
- There is no evidence that the increase in length of sentences has had a deterrent effect on would-be offenders. It is the certainty of detection and punishment, not the severity of the punishment that is the real deterrent.8
- While the long sentences are not achieving the aim of reducing crime, they are on the contrary causing more crime. The overcrowding precludes proper rehabilitation and turns prisons instead into places where criminality is nurtured.
- The long sentences make reintegration into the community more difficult as contact with families tends to be lost.
- Our huge prison population turns us into one of the very worst countries in the world in the use of incarceration for offenders.
- Prescribing minimum sentences has the effect of generalizing punishment instead of individualizing it as is proper.
- The effect of minimum sentences is to undermine the discretion of the courts and to create the perception that judges and magistrates lack the ability to arrive at appropriate sentences on their own.
- The legislation is creating inordinate delays in the completion of cases including lengthy periods between conviction in Regional Courts and sentence in High Courts when cases are remitted for sentence.
- It is preferable for the same court to conduct the trial and impose the sentence as it is already conversant with the facts concerning the offence which might affect sentence.
- The cost of imprisoning more and more young men (60% of our prisoners are men under the age of 30) is tremendous. Such monies can surely be better spent to uplift communities and prevent crime.
Amend Correctional Services Act III of 1998
The Act should be amended by:
- Deleting the provision for the serving of half the sentence before consideration for parole (preferably leaving it to the Department of Correctional Services to regulate as before);
- Deleting the 25 year period before consideration for parole of those serving life imprisonment (preferably leaving it to the National Council for Correctional Services to regulate as before);
- Deleting the requirement that a court should consider parole for life prisoners and restoring the National Council for Correctional Services as the appropriate body to do so;
- Deleting the four fifths requirement for those sentenced in terms of the minimum sentence legislation.
Notes:
1 Figures as at 30 September 2004 from the Department of Correctional Services (DCS).
2 186 546 prisoners in a total population of 46.59m (mid 2004 estimates Stats SA). International Centre for Prison Studies, World Prison Brief – Highest Prison Population Rates – September 2003.
3 Section 65(4)(a).
4 Van Zyl Smit: SA Prison Law and Practice (1992) p 362.
5 Van Zyl Smit (idem) p 379
6 Section 65(5).
7 The Minister appoints the National Council which consists of two judges, a regional magistrate, a director of public prosecutions, two members of DCS, a member of SAPS, a member of the Department of Welfare, two persons with special knowledge of the correctional system and four or more representatives of the public.
8 "While punishment does have a deterrent effect, it is the certainty of punishment rather than the severity of the sentence that is likely to have the greatest deterrent impact. There is certainly no evidence, empirical or even anecdotal, to suggest that increasing sentences from, say, six to 11 years for rape or robbery deters rapists or robbers generally, or even discourages them individually from committing a crime that otherwise they would not have risked." – Prof Dirk van Zyl Smit in "Justice gained? Crime and Crime Control in South Africa's Transition "UCT Press (2004) at p 248.
