10 November 2021
Long prison sentences – especially life sentences – are not the answer to our country’s disturbing problem of violent crime. And wrong policy on this has given us another, urgent, problem – the bloated numbers of people we lock up for life.
One of our democracy’s first achievements was to abolish judge-sanctioned state killings. The Constitutional Court’s very first hearing was a challenge to apartheid’s death penalty. Shortly after, on 6 June 1995, in internationally acclaimed judgments in S v Makwanyane, all eleven Justices struck down the death penalty as incompatible with the new Constitution.
Imprisonment for life is now our ultimate penalty. And the numbers of those imprisoned for life have ballooned astonishingly in our democracy. The latest annual report of the Judicial Inspectorate for Correctional Services (JICS), which I head, records that no fewer than 17,188 inmates currently serve life sentences (“lifers”). This is 12% of our total prison population. This is 43 times as many lifers as when we became a democracy (in 1995 there were about 400).
These facts put South Africa in a global category of its own – an extreme category. In their authoritative world overview, Dirk van Zyl Smit and Catherine Appleton show that, just in the years between 2000 and 2014, South Africa’s lifer population grew by 818% – the highest expansion recorded anywhere (see chart).
In addition, the authors found that, except for the United States and jurisdictions with small populations, South Africa has the highest lifer population per 100,000 people.
South Africa is not alone in imprisoning large numbers of people for life. There is an obvious inverse relation between life imprisonment and abolishing the death penalty – as countries strike down the death penalty, they increase life sentences. Worldwide, life is a statutory penalty in 183 out of 216 countries and territories. And the Rome Statute creating the International Criminal Court, which excludes the death penalty, includes life imprisonment.
This has led to worldwide acceleration. In 2014 there were almost half a million people serving life sentences – a mammoth increase of 80% since 2000. This trend shows no signs of slowing down. And South Africa is a prime mover here.
And in this seemingly beneficial transition from death, too little scrutiny is given to whether imposing life is fair, or whether procedures for release meet human rights standards.
Life imprisonment is a sentence, following a criminal conviction, that gives the state power to detain a person in prison until they die.
For some, a lifeline may exist – a sliver of hope to be released on parole after serving a mandatory minimum part of the sentence (non-parole period). But very few lifers in South Africa benefit from this. That is why our prisons are clogged within an inordinate number of lifers.
Under our statute, absent substantial and compelling circumstances, life is obligatory for a distended list of crimes. As Lukas Muntingh, head of UWC’s Civil Society Prison Reform Initiative notes, life imprisonment is now imposed for offences “that would not have attracted the death penalty, except in the rarest of circumstances.”
These include (as one would expect) premeditated murder, murder committed alongside a robbery with aggravating circumstances, rape of a person under the age of 16 years or of a person who is physically or mentally disabled, or where the survivor was raped more than once (whether by the perpetrator or a co-perpetrator or accomplice (“gang rape”)). But, surprisingly, the list also includes cases where the rapist knows they have HIV, regardless of whether there is transmission or even any risk of it. In addition, life is mandatory for trafficking in persons and for offences related to terrorism, as well as genocide and crimes against humanity.
In striking down the death penalty, the Constitutional Court did not consider when life imprisonment itself may be constitutional.
But it had grave words that foretold our present dilemma. Upholding the right not to be put to death by the state, Justice Ackermann surmised that the state has “a correlative obligation” to protect society from “the unreformed recidivist killer or rapist” who might harm again. Society should be assured, he said, that “such a recidivist will remain in prison permanently.”
The key here is unreformed. A “recidivist” is a convicted criminal who re-offends. It happens. There have been truly horrible cases, recently, of paroled lifers repeating gruesome crimes. But thousands more will not – especially those many lifers aged over 50, since research reliably shows that the risk of violent new offences drops sharply as male inmates age.
The Makwanyane ruling ordered those on death row to stay locked up until “appropriate and lawful punishments” were imposed instead (discussed in Sibiya). Many of the 300-400 people on death row were given life sentences.
But our new democratic Parliament intervened with a massive blunder. In 1997, it enacted sadly misdirected mandatory minimum sentences. The Constitutional Court upheld the new statute (S v Dodo). The result: vastly increased numbers of lifers.
The consequences – for all of us – have been awful. The new mandatory minimums were expressly designed “to encourage courts to impose life imprisonment more often”, van Zyl Smit and Appleton have pointed out. The resultant increase was dramatic – going “far beyond the substitution of life imprisonment for the recently abolished death sentences”.
Worse even, the minimum non-parole period has been steadily pushed upwards. Before 1987, a lifer’s non-parole period was 10 to 15 years. It was then increased to 20 years. But from 1 October 2004, lifers have to serve a minimum of 25 years before becoming eligible for parole.
The Constitutional Court in May 2019 gave a slender straw to those lifers who committed their crimes before 1 October 2004. It struck down as arbitrary the way the increase in the minimum non-parole period was imposed – the period had to take effect from the date of the offence (not the date of sentencing). If the offence was before 1 October 2004, the more lenient parole regime applied.
Other legislation has exacerbated the problem. In 2008, Regional Courts – who handle the huge bulk of criminal cases – were given the power to impose life (though subject to an automatic right of appeal). Life sentences have massively proliferated.
And a new harsher approach to sexual offences has also played a part. Van Zyl Smit and Appleton note that in 1995, only 4% of those serving life were persons convicted of rape. By 2006, this had ballooned to more than one-fifth (21%) of all life-sentenced inmates, now numbering 6,998.
This arises from our grievous problem of sexual and gender-based violence. We, the crime-fearful public, pressed for these changes.
And politicians, keen to be seen to be taking action, seized upon harsher sentences.
Yet there is a grim truth about harsher sentences: they do not help. There is an unchallengeable fact of penology. It is this: what abates crime is certainty of detection, certainty of follow-up, arrest, arraignment and punishment – not length of sentence.
In short, if you know that you will certainly be caught and punished – regardless of how long your sentence – you are less likely to offend.
But if you think you can get away with it, like most criminals in South Africa, no sentence, however long, will deter you.
The result? Violent crime still plagues us. We keep huge numbers in prison for life, pointlessly.
Then there’s the cost – both to the lifer and to us. Lifers are expensive. Precious public money goes towards housing them every day, every month and every year. The knock-on effect, as Muntingh points out, is overcrowding. This places increasing pressure on prison bed-space – disadvantaging shorter-term and unsentenced prisoners (and creating stresses for the personnel who guard them).
This in turn banefully affects all aspects of prisons, “ranging from food provisioning, health and hygiene to wear and tear on infrastructure”.
And uncertainty about parole (processes are lengthy and unpredictable) takes a toll on lifers’ mental and psychological wellbeing. For them, the “pains of imprisonment” stem from uncertainty (when will they be considered for parole? and released?).
Apart from the inevitable, ordinary, hardships of prison life – the deprivations, the humiliations, the loss of control, loss of loved ones and social contact – some lifers feel hopeless, vulnerable, lonely and trapped.
Worst are those sentenced to life without parole – an egregious sentence that hollows out any space for redemption, rehabilitation and reform. In effect, it allows a court, in sentencing, to predetermine how the inmate will behave behind bars. It is no surprise that lifers have described it as – “a slow death row” or even “worse than death.”
All this makes life without parole a target for strategic public interest challenge. (But will lawyers take this on pro bono?)
Further, lifers are often subjected to more punitive prison conditions – even though research shows they are not necessarily more of a risk than other inmates.
In South Africa, lifers are often transferred to Pretoria C-Max and even Ebongweni Super-Max, in Kokstad, where security and other harsh measures (including bleak single cells and severely truncated exercise) trump rehabilitation.
Parole is the lifeblood of the prisons system. My revered former colleague, Deputy Chief Justice Dikgang Moseneke, once explained this to me: the moment the key turns in the lock, release becomes every inmate’s first thought.
Like other inmates, lifers do not have a right to be released on parole. What they have is a right to be considered after serving their non-parole period.
Judging from the complaints JICS receives, our parole system is over-clogged, inefficient and slow. As I see it, the system is doubly dysfunctional.
First, too many inmates unsuitable for parole are released without sufficient monitoring and opportunities for reintegration. Second – the opposite: too few who deserve release are granted it.
An efficient and rigorous process would upturn these anomalies, keeping bad-risk inmates inside, but releasing more good-prospect inmates.
The parole process for lifers is in particular crisis. JICS receives scores of anguished complaints from lifers. Earlier this year, “concerned lifers” at Witbank Correctional Centre wrote, threatening a hunger strike. They said this was their only remaining option.
We also received a complaint from a 51-year-old inmate who has been in Zonderwater for 31 years. He claimed that, despite positive recommendations and a clean record, he has been denied parole. His lawyers denounced this “travesty of justice”.
As I was writing this, another lifer, entitled to benefit from a lesser non-parole period in line with the 2019 judgment, wrote to me in these tormented words:
“How long will our cries go unanswered? How long will no one talk about this publicly? How long will rehabilitated offenders remain in prison on the whim of a cruel and failing state? How long will valuable taxpayers’ monies be wasted on incarcerating rehabilitated offenders?”
I am not saying all lifers must be released on parole. I am saying only this: life sentences should not be mandatory; and lifers should be rigorously considered for parole when appropriate – and the outcome, with reasons, should be communicated clearly and promptly.
But wait. There’s a further snag. The Correctional Services Act gives only the Minister the power to make the ultimate decision on lifers’ parole (after recommendations by the Correctional Supervision and Parole Board through the National Council). This has led to what seems to be a massive backlog on the Minister’s desk: no fewer than 4,494 lifers are eligible for parole now – but over the past year only 36 were granted parole.
Does the Minister, who is well-respected, but responsible for both Justice and Correctional Services, have the capacity to consider each individual parole application? It is a laborious job – if he considers each application for ten minutes, over seven hours, every day, for seven days a week, the backlog would take 409 days to eliminate. Is this practicable?
We must offer hope to parole-thwarted lifers; without it, the system faces perilous dysfunction.
Some courts have found that life imprisonment can be justified only if the inmate preserves some hope for eventual release. Our own Chief Justice Mahomed, sitting in Namibia, declared that life imprisonment “cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly” and “without any prospect whatever of lawful escape”. And if release depends “entirely on the capricious exercise of the discretion of the prison or executive authorities”, then “the hope which might yet flicker in the mind and heart of the prisoner is much too faint”.
I do not call for scrapping life imprisonment. There are extremely dangerous criminals who have to be locked securely away for the rest of their natural lives, though they are rare.
My point is that life imprisonment should be employed sparingly, cautiously and justly: not indiscriminately, as it now is. And it should not shut the door permanently on freedom, hope and reform.
And here our minimum sentencing regime is desperately misdirected. Life sentences should be truly discretionary, with no mandatory default.
For wide-ranging reasons, we have to reconsider our entire sentencing system – and our first step should be to scrap mandatory minimums altogether.
And it is not too late to fix life imprisonment. Van Zyl Smit and Appleton suggest that lifers should face no additional burdens, restrictions and hardships just because they are lifers. They propose principles that promote individualisation, normalisation and progression for lifers. And they underscore how important it is to create a pathway to possible release. (Of course, as Muntingh notes, we must first master all data.)
A fundamental principle in sentencing is the public interest, not public opinion. We cannot assume that life in prison is cushier or kinder than the death penalty. We must rethink our approaches to imprisonment.
This is not only for the sanity, humanity and dignity of our nearly 18,000 lifers. It is for the better good of us all in our crime-ridden society.
Views expressed are not necessarily those of GroundUp.