Sentencing+of+maximum+concern,+ODonovan+and+Redpath,+B+Day

Business Day, Johannesburg, 07 November 2006
=Sentencing of maximum concern=


 * Michael O’Donovan and Jean Redpath**

PICKPOCKETING was punishable by death in England 200 years ago. Yet it was a common occurrence during public hangings for thieves to pick the pockets of enthralled onlookers. This story, related to illustrate the point that the severity of punishment is no deterrent to crime, was made at a conference on sentencing hosted by the Open Society Foundation of South Africa recently.

As researchers commissioned to unpack the impact of minimum sentencing in SA, we can confirm that SA is no exception to this rule.

Very severe prison terms were introduced by legislation in 1998. This legislation prescribed minimum imprisonment terms for a variety of violent and other serious offences. Our research found that any trend towards a reduction in crime rates cannot be ascribed to the legislation or to escalating penalties. There has been a reduction in crime rates in recent years, however it is apparent that the trend preceded the introduction of these penalties. Moreover the declining trend has stabilised, and seems to be reversing, despite the continued application of the law.

While crime has not been reduced, our research shows that the legislation has wreaked havoc with the criminal justice system. The time taken to finalise cases has become longer and the courts more congested. This is predominantly because accused persons, who are generally unaware of the applicability of a minimum sentence until they appear in court, respond predictably. That is, they are increasingly reluctant to plead guilty, demand Legal Aid, spurn plea bargaining, and if bail is granted, abscond. If convicted and sentenced, they are increasingly likely to appeal.

As a result, the time between the offence and sentence is increasing. In the high and regional courts, where all serious cases including minimum sentencing cases are heard, the average is 25-27 months. In some instances, four or more years may pass between the offence and sentence. Longer case cycles mean fewer convictions each year. Even though the police are gamely referring an ever-increasing number of dockets to court, the National Prosecuting Authority (NPA) is unable to increase the number of cases prosecuted. The increasing case-cycle lengths have led to a drop of more than 30% in the yearly number of cases finalised with a verdict per regional court over the last four years. The net result is we are sending fewer people to jail each year.

The delays do not just relate to predictable behaviour of accused people. Imposition of a life sentence requires a complicated system of conviction in the regional court and subsequent referral of the case to the high court for sentencing. This is because regional courts lack jurisdiction to impose a life sentence, while the high courts would not be able to cope with the volume if all such matters were heard in the high court.

An estimated 90% of life imprisonment cases referred for sentencing involve the rape of vulnerable victims such as children. Unfortunately, the referral procedure involves “tertiary” trauma for victims, who are frequently called upon to give evidence a second time when the conviction is confirmed and sentence imposed.

While the referral procedure is costly and time-consuming, it appears to be necessary to avoid miscarriages of justice. Our research, drawing on NPA data, showed that in some 12% of cases, the convictions in the regional court were overturned at sentencing stage in the high court.

The legislation has succeeded in raising sentences for “ordinary” rape to an average of about 7-12 years imprisonment from the earlier norm of two to three years imprisonment.

But lengthier sentences for many violent offences are not solely related to the legislation and are also related to the expansion of the punitive jurisdiction of the regional court to 15 years imprisonment. These harsh sentences have resulted in prisons already operating beyond their capacity — but this is not because we are sending more criminals to prison, but because we are sending fewer away for far longer. While some may view this as a good thing, there some important reasons why it is not.

First, the only way prisons will be able to cope is by way of periodic “special remissions”, that is, mass releases of prisoners before their parole date. As the proportion of non-violent offenders in prison reduces as a result of earlier remissions and the prosecution preference for prosecuting violent and sexual offenders, violent offenders will inevitably form part of future “special remissions”.

Second, conditions of overcrowding are brutalising and not conducive to the preparation of prisoners for re-entry into society.

Third, although international research shows the severity of punishment is no deterrent to crime, that same research shows that the certainty of punishment is a better deterrent. The harsher sentences are affecting the capacity of the system to send out a warning of the certainty of punishment. This is because prison space and court time have become such scarce commodities that all but the most serious crimes are often punished by wholly suspended sentences — or are simply not being prosecuted at all. As the most serious matters consume court resources and prison beds, other offenders are increasingly getting “a free ride” from the criminal justice system.

Our research finds public confidence in the criminal justice system as a whole is declining. We know from survey data that public confidence among court users is closely related to delays. The more delays there are the lower the opinion court users have of the criminal justice system. It is also clear that minimum sentencing has contributed to the number and length of such delays. Additional delays arising from minimum sentencing will further undermine confidence in the criminal justice system.

Minimum sentencing legislation was originally intended to be a temporary intervention to address popular concerns about crime but has remained on the books for eight years. When it comes up for renewal in April next year, legislators will have to consider whether the damage the law is causing is worth the temporary political mileage gained by appearing to be “tough on crime”.

SA urgently needs a new sentencing regime that takes into account the capacity of the system to enforce prison sentences, and alternative punishments — rather than a free ride — for less serious offences. As things stand, politicians who peddle minimum sentences as a solution to crime will have to be reminded of their stance when the next mass release of prisoners takes place.


 * O’Donovan and Redpath are directors of Hlakanaphila Analytics and authors of an OSF-SA report on the impact of minimum sentencing in SA.


 * From: http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A311902**

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