People’s Power for Economic Freedom Table of Content
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- Unethical Vs Ethical Justice and Correctional Services Policy
- Case Study: An Example of Unethical Policy Making
- SA is Catching Up in Rat Race for Prison Population Explosion
- The Way Forward
- The State of Africa
- Non-Negotiable Cardinal Pillar Number 7
- Policy Principles End-State Objectives
- Broad Directional Perspective
Contextual Argument:
Most traditional justice systems which believe high punitive sentencing equals crime reduction have a high reoffending rate, like the British rate was more than 70% in 14 prisons in England and Wales in 2007, at an average cost of £40,000 a year for each prisoner.7 Meanwhile “the United States incarcerates more citizens per capita when compared to other European countries. In addition to the high incarceration rate, the U.S. also maintains a relatively high rate of recidivism, suggesting the U.S. prison system does not effectively rehabilitate American prisoners”.8 Langan & Levin, (2002) argue that many US inmates are re-arrested within three years of their release, and that the majority of US prisons exist to protect the public by punishing the offender, with fewer prisons actually engaged in rehabilitating inmates to reduce recidivism.9 On the other hand, like Norway, the Danish model’s success is dependent upon its “ability to secure potential employers. For example, the Danish welfare state has effectively embedded policies that keep their prison model functional within the surrounding community”.10 Prisoners are assisted in finding jobs that will sustain them post their release, making them to look forward to that time, with good behaviour and emotional preparedness to start afresh. The Nordic (Norway, Sweden and Denmark) justice and penal systems are generally acclaimed for recidivism reduction; scoring very low on repeat offenders, on the incidence of inmate violence, prison gangs, and prisoner hardening. It is rated as the most successful at deterring future criminal activity when compared to the U.S. It is rehabilitative centred, with low to medium sentencing and a typically small inmate ratio per prison. Basically there are two types of prisons, the closed and open categories. The latter is the more punitive-styled prison, which receives the prisoner at inception, but halfway or three thirds towards the sentence, the prisoner is released to the open prison where they begin the journey of not only intense rehabilitation but also community re-integration. In the open prison inmates live in communes of between six and ten per house, with private individual bedrooms and communal ablutions as well as kitchen. They earn a living, and they are responsible for their own groceries and food, often purchased on sight at a departmental store within the base (prison).11 According to Kenis et al., 2010; and Pratt, 2008, Finland sends eligible inmates to ‘labor camps’ where they too, earn a living wage for work done. They are then responsible for their total expenses and taxes. These prisoners are said to be often able to support themselves as well as their families. This makes it easy for them to re-accepted back upon release, but it also ensures that their dependants are not left in the cold, due to their incarceration.12 Another success experiment based on more or less the same model, has been the ”Dutch prison was created to minimize costs and increase inmate success following release, where inmate rights are of paramount concern and the ultimate goal is to teach offenders that their choices have consequences, both good and bad”,13 and it worked. To conclude on context, there are alternative criminal justice and penal systems or programmes. For instance if applied efficiently and effectively, restorative justice allows for offender and victim dialogue, facilitating remorse and therefore beginning the process of rehabilitation. For a country like South Africa, with a history of statutory violence, and unfulfilled political promises, the culture of entitlement can remove remorse from the offender, who might have a disconnection with the concept of having offended the state when they feel the state owes them anyway. Lastly, the concept of just deserts can also be a viable option in the African continent, including SA, where the state is often not rich enough to afford a huge prison population like the USA. Just deserts ensures that sentencing fits the crime, instead of using sentencing as a statement to deter potential or would be criminals. Research has proved that high sentencing does not actually deter crime but leads to a ‘prison population / nation’, often costly on the state because the more they are, the more unmanageable they are. This is what leads to lockdown, due to safety issues, which denies prisoners their right to work, while embedded in work is also the inalienable emotional therapeutic process that takes place when a human being works.
It is incumbent upon policy makers to act ethically, undertake formal policy analysis, and avoid promoting ad hoc, arbitrary, and irrational policy solutions, resulting from reactive rather than proactive policy formulation. There are numerous examples both locally and internationally, which indicate that Justice and Correctional Services Policy Makers could add salt to an open wound if not careful and sensitive to the application and outcome of the laws they promulgate. For example, there exists both in SA and internationally, a type of sentence termed, “mandatory sentencing”. This type of pre-fixed sentencing denies the courts of treating each case in its own merits, reducing the Judges to mere administrators of the law. This type of sentencing has its origins in the apartheid era. “Statutory provisions that deprive the courts of their discretion in imposing sentence have been known to exist in the history of South African criminal justice. By way of illustration you may refer to the following examples:
Unfortunately the 1997 Criminal Law Amendment Act 105, did not abolish this practice but upheld it in the imposition of mandatory minimum sentences: “The amendment act lists certain serious crimes such as murder, robbery and rape and describes actual situations in which mandatory sentences, including life imprisonment for murder and rape, must be imposed, except where courts find "compelling and substantial" circumstances which justify a lesser sentence. An important advantage of this amendment act is that it expressly specifies that certain serious offenses must be severely punished in particular circumstances - a fact that can promote consistent sentences and equality before the law. On the other hand, the provisions have also created new problems, for instance diverging interpretations of "compelling and substantial circumstances" by the courts”.15 Section 51 of the 1997 Criminal Law Amendment Act 105, prescribes minimum sentencing for murder, rape and robbery to 25, 15 and 10 years respectively. This means a guaranteed parole after the minimum sentence for the lesser crime has been served. Through the years, life imprisonment has become mandatory in South Africa for premeditated murder, gang rape, serial rape, as well as rape where the rapist knowingly infects the victim with HIV, and if the victim is under 18 and/or mentally disabled. The role of mandatory sentencing in the criminal justice system as a whole is arguable, in that it has led to an explosion of the prison population, this at a time when states are considering and investing in private penitentiaries. Of notable highlighting is the United States of America (USA), which has championed mandatory sentencing while at the same privatising prisons, turning the whole system into an industry driven by profit. Its effect on crime reduction is equally arguable, with most researchers stating that its crime deterrence outcomes are negligible, and with years such outcomes equal to naught: Human rights organizations, as well as political and social ones, are condemning what they are calling a new form of inhumane exploitation in the United States, where they say a prison population of up to 2 million – mostly Black and Hispanic – are working for various industries for a pittance. For the tycoons who have invested in the prison industry, it has been like finding a pot of gold. They don’t have to worry about strikes or paying unemployment insurance, vacations or comp time. All of their workers are full-time, and never arrive late or are absent because of family problems; moreover, if they don’t like the pay of 25 cents an hour and refuse to work, they are locked up in isolation cells.16 Critics argue that there is no society that has ever imprisoned its citizens like today’s USA. That is what happens when the justice system is commoditised into business. Moreover, mandatory sentencing leads to ‘plea bargains’, which can in turn be aborted justice, because unknowing citizens could be lured into accepting this by cunning and / or corrupt lawyers. These lawyers could either be in cohorts with the corrupt system, which seeks to generate a surplus of cheap labour for big business, or be plain incompetent. The plea bargain has ensnarled too many unsuspecting suspects, who only realise with hind sight that the system ‘crooked’ them. “It is routinely noted that the impact of harsher sentencing regimes on general deterrence of crime is difficult to isolate and measure. Writing from an international perspective, Tonry states that: The evidence is clear and weighty, that enactment of mandatory penalty laws has either no deterrent effect or modest deterrent effect that soon wastes away. Equally clear and consistent are findings that mandatory minimum laws provoke judicial and prosecutorial stratagems, usually by accepting guilty pleas to other non-mandatory penalty offences or by diverting offenders from prosecution altogether that avoid their application”.17 Below is a case study which shows how easily and quickly mandatory sentencing can be manipulated as an instrument of racial exploitation, stereotyping and discrimination. Therefore the EFF committee on Justice and Correctional Services must exercise caution in finalising this policy. Care should be taken to second competent commissars in this committee, so that the mistakes of both the National Party and the ANC, are never repeated. Case Study: An Example of Unethical Policy Making? Legislation enacted in 1986 shaped the War on Drugs by prescribing mandatory minimum penalties for drug trafficking based on the amount of drugs involved and by making a distinction between possession of cocaine and possession of crack cocaine. A penalty was imposed of a minimum of 25 years imprisonment for possession of 5 or more grams of crack cocaine (the form of cocaine for which African Americans are disproportionately arrested). In contrast, an offender found guilty of possession of powder cocaine (the type commonly used by middle- and upper-class whites) would only be liable for a mandatory minimum sentence of 5 years if the amount of cocaine exceeded or equalled 500 grams. The legislation was firmly aimed at social control and included provisions that eliminated probation and parole for certain drug offenders and allowed for the forfeiture of assets. Fundamentally, drug abuse had been perceived and defined as a national security issue for the United States, and the War on Drugs was portrayed as a matter of national survival. After 1986, however, media and public attention drifted away from the issue of drug abuse. By the mid-1990s, three out of four persons doing time for drug offenses were African American, and in the federal courts, 94% of persons tried for drug offenses were African American. In 1995, the U.S. Sentencing Commission urged that there be parity in penalties for the different forms of cocaine, explaining that there was no rational basis for this differentiation in sentencing (Glassner 1999: 136). The commission’s recommendations had never before been refused, but the White House and Congress aggressively opposed these recommendations, which were struck down in the House of Representatives by a vote of 332 to 83. Rather than give equity to African Americans charged with drug offenses, the White House and Congress preferred to avoid being labelled as “soft on drugs.”18
According to the former Minister, Mr. Ndebele’s assessment in 2013, "[We are] currently ranked ninth in the world in terms of prison population, with approximately 160 000 inmates, at least 30% of those detained were awaiting trial".19 It is both worrying and absurd, that Nigeria, with a population of 175 million, as compared to 48.8 in SA, has a prison population smaller that SA. The warning signs are already raising an alarm, that as much as the ANC-led government has been conciliatory towards MNCs and corporations, they are likely to continue this tendency and cross over to prison privatisation. Given the already discussed problems embedded within this system, especially in a highly racialised society like SA, as seen through the eyes of the USA, which is equally racialised; the EFF government must ban all forms of prison commoditisation. According to 2013 statistics, the country had only two private prisons, one in Mangaung and the other in Limpopo. There is no guarantee that despite the 4th Parliament Portfolio Committee findings on privatisation, and their conclusion on terminating such a project; big capital could pressurise government to the point of caving in.
A Guide to the Economic Freedom Fighters (EFF) Afrocentric, Equitable, Social Justice and Correctional Services Policy
Non-Negotiable Complementary Pillar Number 13 In the EFF Founding Manifesto, under its Complementary Pillars, Pillar Number 13, “the Transformation of the Criminal Justice and Correctional-Services System”; emphasis is put on an equitable justice system, accessible, representative and prosecuting both ordinary citizens as well as multinational corporations (MNCs)/corporations. Regarding Correctional Services the focus is corrective / rehabilitative – including skilling or re-skilling, not punitive, with special attention to reducing repeat offending and de-criminalisation of certain categories of ex-convicts depending on the seriousness of the crimes committed. The EFF can only achieve such equitability in Justice and Correctional Services if it not only continues to champion nationalisation for economic emancipation, but also for state capacitation to render non-class based social services of quality. Under the EFF, South Africa would have to consider her influence on other African countries’ Justice and Correctional Services systems. This is because MNCs / corporations have the tendency, under ‘divide and rule’, to maximise their profits in that African country, which allows them the lawless behaviour of exploitation and maximisation of profit at all costs; to the exclusion of the one which enforces rules and laws on them. An example is Kenya, which in the eighties rebuffed any notions of socialism or communism, including social democracy, but charted a down-right ruthless capitalist neo-liberal system. She was praised by the west, and generally regarded as an African model of success, because her macro-economic performance looked good: “GDP rose on average by a high 6% per year and Kenya outdid Indonesia and Malaysia right until 1980. Behind the stats is a sad picture. “[The] figures disguised a widening disparity – the rich got richer and poverty levels increased,” Martin Meredith observers in The State of Africa”.20 The reality on the ground is that, there shall be no single African country justice if the rest of the continent continue to champion neo-liberalism and indulgence of the MNCs at the expense of their citizens, especially the poor.
Open, Accountable, Corrupt-Free Government and Society without Fear of Victimisation by State Agencies The EFF government must strengthen state capacity, and also spearhead the training of all civil servants in matters of morality and ethics, as well as basic statutory laws. In order for civil servants not to be lured into corruption of any kind, the state will have to pay its employees equitably, making a conscious concerted effort to shy away from the notion that ‘working for government is a calling ONLY, but one can never break even and prosper as one would with the private sector’. Herein lies the importance of nationalisation, in order to ensure that the state is not only skills capacitated, but economically too. It is only when the state is self-sufficient and reliant that it can adequately compensate its workers accordingly, as opposed to being reduced to a borrower of money from external lenders,. The political consciousness of state security agencies, equitable remuneration and proper skilling, shall ensure their professional display and demeanor in general. The EFF government shall take caution not to repeat the mistakes of the National Party apartheid government as well as the African National Congress, where state security (and its private corporations) was and is pivotal, at the expense of citizenry security, to the point where state agencies are employed against their own people as was the case at Marikana. In order to obtain this level of professionalism and ethical behaviour by its security agencies, the EFF state will have to re-define “security” for itself, taking into context its Manifesto and the 7 Cardinal Pillars, including the past behaviour of security agencies in the last 60 years. To this effect, the EFF government would have to be draw its lessons from the cold war era, form both east and west applications, moving away from the state security protection of the west as well as the centralised state and information protection of the east: “The application of human security calls for an assessment of human insecurities that is people-centred, comprehensive, context-specific and preventive. Such an approach helps focus attention on current and emerging threats to the security and well-being of individuals and communities”.21
This policy applies to all justice sectors, viz. the Chief Justice, Legal Fraternity, Courts, and related institutions, viz.: The Public Protector, The South African Human Rights Commission, The Commission For Gender Equality, The Auditor General, Electoral Commission, Public Service Commission, Financial And Fiscal Commission, Pan South African Language Board, Independent Commissions Authority Of South Africa, Commission For The Promotion And Protection Of The Rights Of Cultural, Religious And Linguistic Communities. It further applies to all Correctional Services personnel. Lastly, it is applicable to state security agencies in as far as their usage against the ordinary citizens by the state, to harass, maim or kill them, shall constitute a crime.
End-State Objectives
Broad Directional Perspective
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