CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION

15 June 2007

Submission on Criminal Law (Sentencing) Amendment Bill 15 of 2007

The Centre for the Study of Violence and Reconciliation (CSVR) would like to thank the Portfolio Committee for the opportunity to make submissions in respect of the amendment Bill.

The Minimum Sentencing legislation was introduced in 1997 (The Criminal Law Amendment Act No.1 05 of 1997), effective in 1998, as a temporary measure while a comprehensive framework for sentencing was developed and finalised through the South African Law Commission (SALC). In the meantime, the Minimum Sentencing legislation has been renewed successively each year.

Par1iament is now considering making amendments to the minimum sentencing legislation in order to clarify certain aspects, as well as to make it a permanent feature of the law. However, in order to consider whether it should be made permanent, it is essential to look at the reasons behind its introduction, and whether it has achieved its objectives.

Background to the legislation

A Project Committee on Sentencing was set up by the South African Law Commission in 1996 was established and they produced an issue paper on mandatory minimum sentencing and a second paper on restorative justice and invited public comment by 30 September 1997. In respect of sentencing the Committee made a number of proposals regarding sentencing guidelines and one proposal around minimum sentencing. It elicited a wide range of comments from a variety of stakeholders, but the Committee reached the end of its term without consolidating its findings and making fuller recommendations.

The Minimum Sentencing Legislation was enacted without waiting for this work to be consolidated. Instead, a new committee was appointed in late 1998 under the leadership of Prof Dirk van Zyl Smit, and they were tasked with investigating sentencing reform as well as the position of victims.

Before undertaking the work, the Committee identified the shortcomings in the existing sentencing system as follows:

· Like cases were not always dealt with alike due to unfair discrimination and bias

· The judiciary did not give sufficient weight to the seriousness of particular offences and imposed disproportionately light sentences, particular1y in respect of sexual offences

· Offenders were released from prison without serving their full sentences, thus undermining their original sentences.

According to Prof van Zyl's Committee the Minimum Sentencing legislation responded to most of the issues outlined above in that it set about to achieve consistency for serious offences, but it stated that the law also introduced new problems of its own. The Committee therefore undertook an assessment of the impact of the Minimum Sentencing legislation and looked at whether it had achieved the objectives.

The Committee found that:

· The legislature had given inadequate thought to the impact of the legislation on prison overcrowding, and they predicted that the impact would only and increasingly be felt some years after the introduction of the amendment.

· The sentences for some offences, namely rape, are longer than they were before.

· Judicial officers were concerned that the legislation limited their discretion.

· The legislation was also restricted to certain types of serious crimes (e.g. kidnapping was excluded)

· There was inconsistent interpretation of the phrase "substantial and compelling circumstances".

Taking these criticisms into account, the Committee also took the view that a more comprehensive sentencing framework should be developed that would establish a normative set of guidelines for the courts, as well as a partnership on sentencing between the State, the courts, the public and victims. A proposed Sentencing Framework Act was developed and opened for extensive public consultation during 2000. However, this was never brought before Parliament, and the Minimum Sentencing legislation has continued to provide an unsatisfactory stop gap.

While the more legal concerns may indicate the legislation was intended to deal with inconsistency in sentencing, there is also a strong message being sent by government and political parties that there is a need to be seen to be tough on crime in context of current high levels of crime, and that the Minimum Sentencing legislation also confirms this message.

Concerns about the Minimum Sentencing legislation

The Minimum Sentencing legislation has continued to receive critical assessment from academics and civil society. Some of these criticisms are dealt with here.

Impact on levels of crime

While the total number of crime reported to the SAPS has reduced by 4% from 1997/1998 Year to the 2005/2006 year, reported sexual offences increased over this period. It is not clear what is driving the overall reduction in crime, most likely the combination of a number of factors, and is not necessarily related to the minimum sentencing legislation.

International research has shown that there is no relationship between the levels of incarceration and crime levels in a country, and that mandatory sentences have little or no impact. However, in the USA, research indicates that incarceration may have a modest effect on crime rates. As incarceration rates increase, it is likely to catch up increasingly with a greater number of less serious offenders. It is argued that the deterrent effect is likely to be more attributable to the certainty of sanction, than to the extent of punishment.

A study in the US found that rising imprisonment rates were not driven by increased crime, but rather by changes in sentencing policy.

There is also little evidence that minimum sentencing can assist in crime prevention through keeping repeat offenders locked up in prison, as not all people convicted of serious violent offences have committed violent crimes before, or are likely to commit crime again. Levi and Maguire, citing British Home Office research, report that of those convicted of homicide, only 1 in 6 had previous convictions for violent crimes. In addition, of 1,145 persons convicted over a 20 year period and released on license from a life sentence for homicide, only 3% were reconvicted for a grave offence within five years, and only 1% within two years. Those convicted and who had not had prior convictions were only half as likely to be reconvicted after they were released.

Impact on public confidence

While it is often thought that harsh sentencing regimes would make members of the public feel safer, or contribute towards improved faith in the criminal justice system, this has also not been properly established.

Despite a reduction in the number of reported crimes, which was confirmed by the National Victims of Crime Survey (NVCS) conducted in 2003, the survey found that 53% of respondents felt that crime has increased since 1998. Those living in metropolitan and urban areas were more likely to perceive that crime was increasing.

Public perceptions about government's role in reducing crime are variable and do not seem related to the legislation. According to Afrobarometer, in 2000 only 18%

of respondents were satisfied with government's efforts to reduce crime. This rose to 40% in 2004 and fell again to 35% in the latest survey in 2006.

Impact on incarceration levels

The size of the prison population, and the rate of incarceration has long been a concern in South Africa. The prison population reached a high in excess of 187,456 during 2005 with overcrowding levels over 160% nationally, and more than 388% in certain prisons. Conditions in overcrowded prisons are inhumane and contrary to the fundamental human rights as enshrined in our Constitution. In addition, various problems associated with overcrowding, including shortage of staff, space in which to conduct programmes, lack of recreational time, and the added stress of living in such conditions, and violence, compromises the Department of Correctional Service's ability to carry out its various mandates. In particular, it is almost impossible to expect to rehabilitate and reintegrate people in line with the objectives of the 2005 White Paper on Correctional Services.

Although prisoner numbers have declined to 160,518 by 4 May 2007,10 the decline and subsequent stability of the population has not been without artificial means. A number of prison releases have been approved by Cabinet from time to time. More than 30 000 inmates were released from prison between June and August 2005. A more recent initiative will see the release of 11 000 inmates who were fined R1000 or less but were unable to pay the fine.11

Incarceration levels all over the world are very much influenced by penal and sentencing policy, rather than by crime levels.

Research on the impact of the minimum sentencing legislation on incarceration levels has yielded some interesting results. The number of admissions to prison for short-term sentences has decreased from 2002 indicating that the lower courts are less reluctant to resort to imprisonment, possibly as a result of overcrowding.12 In contrast, the number of admissions of inmates serving sentences of more than 10 years is increasing, and a growing proportion of the inmate population are serving long prison terms. Indeed, it would appear that the longer sentences are increasing at a faster rate.13

One impact of longer sentences is that prisoners will be in prison for longer periods of time, thus contributing cumulatively to increasing the size of the prison population. In addition, the Correctional Services Act (S 73(6)(b)(v» requires that prisoners who have been sentenced in terms of the Minimum Sentencing legislation may not be released on parole until they have completed 80% of their sentence or 25 years, whichever is the shorter. However, the sentencing court may stipulate a shorter period of two-thirds of the sentence.

Ad hoc releases of those sentenced for minor offences in order to control the size of the population, or even greater use of alternative sentences for those offenders, may result in short-term reduction in the prison population, it is unlikely to impact positively on the prison population over the long term. It is also likely to contribute to a lessening of public faith in the criminal justice system.

The costs of incarcerating increasing numbers of people, for increasing periods of time, will have increasing costs implications for the state. In addition, since the prison population will also be aging as the average sentences increase, there is a possibility that the state will be obliged to provide increased medical treatment and care in order to cater for an aged population. The impact of the further extension of this legislation will therefore have substantial costs and personnel implications for the sate.

Impact on consistency of sentencing

As the proposed amendments make dear, the mandatory minimum sentences are discretionary, and the courts have used a range of different arguments under the 'substantial and compelling circumstances' phrase to decide on lesser sentences than the minimum sentences.

Impact on courts and backlog issues

The proposed amendment makes provision for the regional courts to sentence people to life if convicted in terms of the legislation, thus doing away with the split procedure of referring cases to the High Court for sentencing. While this may reduce the number of backlogs at the High Court, the proposed automatic right to appeal to the High Court (Section 309 (a) of the Criminal Procedure Act) will introduce problems of its own. Firstly, in order to fully utilise the appeal procedures the accused person should have access to legal assistance, which is not always available. Secondly, the number of appeals that may be generated by this process will further exacerbate the backlog of appeals before the High Courts. This is likely to result in further costs for the state.

The split procedure is still to be applicable in the case of a regional court sentencing a person beyond the expanded jurisdiction of the court as conferred on it by the Act (Section 51 (2))

We also do not support the argument that the regional court should be empowered to impose the maximum possible sentence of life imprisonment on a person, believing that this should be the remit of the High Court.

Conclusion

CSVR is concerned that the proposed amendments will entrench the minimum sentencing legislation as a permanent feature of the law, whereas before it was subject to annual extensions. This created the possibility to review the effectiveness of the act. As stated earlier, it was also to allow for the development of a comprehensive sentencing framework. Although the SALC presented very comprehensives recommendations grounded, by thorough research and legal analysis, as well as strengthened by public comment, this work has been ignored by the legislature. Instead, it has tried to address sentencing issues in a piecemeal fashion.

As outlined above, and from numerous research reports on the minimum sentencing legislation, it would appear that the legislation has not achieved the objectives it set out to achieve.

CSVR recommends that Section 53 (1)(2) and (2A) should be retained, or a fixed period for the retention of this legislation should be stipulated, whilst a review of the current system and a redrafting of a new and comprehensive framework is undertaken. This review should allow for full public participation and debate.