‘Scrap min­i­mum terms’

Weekend Argus (Sunday Edition) - - OPINION - HAR­RIET BOX

MIN­I­MUM sen­tences have not only proven in­ef­fec­tive, but have also had per­ni­cious ef­fects on the cor­rec­tional sys­tem, on of­fend­ers, and on so­ci­ety in gen­eral, ac­cord­ing to Jus­tice Ed­win Cameron.

There is no ev­i­dence that manda­tory min­i­mum sen­tences work, and grow­ing ev­i­dence that they are not ef­fec­tive – and yet South Africa stub­bornly per­sists with manda­tory min­i­mum sen­tences – largely be­cause the state wants to per­suade a “ter­ri­fied” pub­lic that it is tough on crime.

Th­ese were the views ex­pressed by Jus­tice Cameron of the South African Con­sti­tu­tional Court when he de­liv­ered the Univer­sity of the Western Cape (UWC) Fac­ulty of Law’s Third An­nual Dean’s Dis­tin­guished Lec­ture on Thurs­day 19 October.

The lec­tures, as UWC Law Dean Pro­fes­sor Bernard Martin ex­plained, pro­vide a plat­form for South Africa’s lead­ing le­gal minds to ex­plore some of the most press­ing is­sues of our times.

Cameron’s lec­ture, Im­pris­on­ing the Na­tion: Min­i­mum Sen­tences in South Africa, made a strong case for the scrap­ping of such min­i­mum sen­tences for most low-level non­vi­o­lent crimes – a case not al­ways pop­u­lar with the South African pop­u­la­tion, he warned (al though he stressed that long sen­tences for vi­o­lent crimes are nec­es­sary).

Min­i­mum sen­tences have not only proven in­ef­fec­tive, but have also had per­ni­cious ef­fects on the cor­rec­tional sys­tem, on of­fend­ers, and on so­ci­ety in gen­eral.

“Min­i­mum sen­tences of­fer us a false prom­ise,” Cameron said.

“They of­fer us a be­lief that we are ac­tu­ally do­ing some­thing about crime.”

The toll has been dis­as­trous, Cameron noted.

For one, over­crowd­ing in South African pris­ons has led to a range of hu­man rights vi­o­la­tions, per­pe­trated in the name of its cit­i­zens.

It also dis­pro­por­tion­ately af­fects black and coloured of­fend­ers.

And manda­tory min­i­mum sen­tences fail to meet, he ar­gued, all four ra­tio­nales used in jus­ti­fi­ca­tion: de­ter­rence (of­fend­ers are de­terred by the cer­tainty of pun­ish­ment rather than the sever­ity of the sen­tence), in­ca­pac­i­ta­tion (lock­ing up less dan­ger­ous crim­i­nals for long pe­ri­ods does not re­duce crime), re­ha­bil­i­ta­tion (this is sim­ply not done, in Cameron’s ex­pe­ri­ence vis­it­ing South African pris­ons) and ret­ri­bu­tion (de­spite its strong emo­tional and his­toric ap­peal, vengeance has many short­com­ings).

Harsh min­i­mum sen­tenc­ing, Cameron ex­plained, was in­tro­duced into South African law in 1997 by the Crim­i­nal Law Amend­ment Act, a “tragic mis­take” that has “plagued” the coun­try for the past 20 years.

The law was put on the books largely to pla­cate a ter­ri­fied pub­lic as vi­o­lent crime rose sharply over the coun­try’s tran­si­tion to democ­racy.

“Strug­gling to ce­ment its le­git­i­macy amid an out­cry over crime, the state and politi­cians felt not only com­pelled to act, but more im­por­tantly to be seen to act,” said Cameron.

There are ways to re­duce in­car­cer­a­tions in South Africa, but there are “no short­cuts”, “no magic bul­lets”, said Cameron.

Firstly, manda­tory min­i­mum sen­tences for low-level non-vi­o­lence crimes – mostly drug-re­lated – should im­me­di­ately be scrapped, he urged. He pro­posed the estab­lish­ment of a sen­tenc­ing coun­cil that had pre­vi­ously been mooted to come up with a more ef­fi­cient sys­tem.

The men­tally ill should be treated rather than im­pris­oned.

And, fi­nally, pre-trial de­ten­tion prac­tices should be over­hauled – and lock­ing up those who can­not af­ford bail is sim­ply un­fair.

We are all ter­ri­fied of crime, noted Cameron in clos­ing – and of­ten jus­ti­fi­ably so.

But it must be recog­nised that min­i­mum sen­tenc­ing – “per­ni­cious, mis­guided and fu­tile” – has not re­duced the lev­els of crime in our so­ci­ety.

“In­stead, let us hold our lead­ers ac­count­able,” he urged.

“They must guide us – and guide them­selves – to the hard work and the sys­tems-build­ing that will re­sult in ef­fec­tive crime-pre­ven­tion.”

Box is a Com­mu­ni­ca­tions Of­fi­cer at the In­sti­tu­tional Ad­vance­ment: Me­dia Of­fice at the Univer­sity of the Western Cape.

Judge Ed­win Cameron ... min­i­mum sen­tenc­ing for non-vi­o­lent crime harms so­ci­ety – rather give jail terms for vi­o­lent crimes.

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