By The People

The knee-jerk reaction of most South Africans to the problem of crime in South Africa is to demand longer sentences for everyone convicted of any kind of crime. There is also little sympathy for improving prison conditions. But that may be exactly the worst possible policy from the point of view of reducing crime rates. There is a role for civil society and the private sector in finding better ways of dealing with offenders.

Did you know that between 10 000 and 20 000 prisoners are released from South African prisons every month? A scary thought, given that these ex-prisoners face few prospects for employment, and probably don’t qualify for any government support grants. Not to mention that in some prisons, the prison gangs have links with criminal gangs outside of prison. Most ex-prisoners will also have been victims of crime within prison. Apart from being ‘hardened’ by prison, ex-prisoners will have networked with other prisoners and learnt ‘criminal skills’ in prison. Without a doubt, ex-prisoners return to society posing more of a danger than when they went in. As Sarah Henkeman of the Centre for Conflict Resolution has remarked:

‘The deficient circumstances in our prisons facilitate a cycle of recidivism (repeat offending and imprisonment). If the rates of recidivism are anything to go by, the writing is on the wall. If we do not seek to restore and successfully reintegrate offenders, we are fattening a monster (crime) that is already avenging itself on society. We are feeding the very thing we have declared “enemy number one” and pulled out all stops against. For us to make any impact on crime rates, the vicious cycle of recidivism must be broken. A linear system of justice on its own is no match against a cycle of criminality that is self-reinforcing.’ (see CCR paper)

The worst of it is that the majority of prisoners are not in prison because they have been convicted of a serious crime. Consider that of sentenced prisoners, half are sentenced to fewer than six months in prison - indicating the less severe nature of their offences. On top of that, more than 34% of the prison population is awaiting trial. This leaves only 16% of prisoners - around 30 000 - convicted and sentenced for the serious crimes which are of major concern to South Africans. Yet a major cause of the deficient circumstances in prisons, is overcrowding. South African prisons hold about 190 000 prisoners, although they were designed to hold about 110 000.

Prison privatisation?

One solution that has been seized upon to address the overcrowding problem is to build more and better prisons. South Africa, surprisingly, jumped at prison privatisation to meet the demand for more prisons, despite it being an emotive and controversial issue. But plans for more private prisons have now been shelved. What happened?

Soon after the first private prisons opened it became clear that their contracts had been poorly drafted. The prisons were going to cost the state far more than originally thought. This happened because the contracts were negotiated in an atmosphere of secrecy. Doubts about the contract process were also raised when those involved in the contract negotiations left soon after signing to join the successful contractors concerned, raising concern about conflicts of interest and corruption.

Yet despite these problems there is no doubt that conditions in private prisons are better than conditions in state prisons, not least because the terms of the contracts specifically prohibit privatised prisons from accepting more than the agreed number of prisoners, so eliminating the possibility of overcrowding. The agreements also stipulate a range of education, therapeutic and health services that contractors are required to provide. Another advantage often cited is the ability to bypass powerful unions and labour problems.

At first, contracts for seven private prisons were contemplated. However, only two have been constructed and are now operational. Mangaung Maximum Security Prison in Bloemfontein was officially opened on 1 July 2001, after 2 928 prisoners were transferred there, filling all the available prisoner places. The Louis Trichardt Maximum Security Prison opened on 19 February 2002. The names of these prisons should also ring warning bells: why so much concentration on maximum security prisons? One academic has noted that it would have been preferable “(to) utilise foreign money and expertise - to break the cycle of crime for first offenders”.

As we have seen, the ‘worst’ prisoners, who end up in ‘maximum’ or ’supermax’, are not in the majority. This becomes startlingly clear when we consider the case of the new state-run ’supermax’ prison in Kokstad . Nearly a year after opening, Correctional Services still struggled to find enough ‘bad eggs’ in sufficient numbers to fill the 1 400-bed prison.

Of course, simply because poor contracts for the wrong kinds of prison were drafted in an improper process doesn’t mean that private prisons are a bad idea. Instead of shelving the idea completely, care can be taken to ensure the same mistakes are not made again, while retaining the advantages such as better and less crowded facilities. However, the mistakes already made may have sullied the whole idea of prison privatisation for the near future.

But building more and better prisons is still not the whole answer to the problem of the cycle of recidivism - no matter how good a prison is, it is still a place from which few emerge reformed. The real issue is that too many people are in prison when more appropriate ways of dealing with their conduct might exist. Of course, criminal behaviour must be addressed. But it makes no sense if punishment leads to more rather than fewer crimes in the future.

Diverting children

South Africa’s new Child Justice Bill recognizes that time spent in prison by children can be bad for both the child and society. The bill creates a number of different sentencing and diversion options, instead of prison time. NICRO, the national crime prevention organisation, has run diversion programmes for young people in conflict with the law for some years.

An effectiveness study showed that 93.5% of children who had been on a NICRO diversion programme did not re-offend in the first year after leaving. However, very few such diversion programmes are available. A gap certainly exists for the development of more such programmes by civil society groups.

Restorative Justice

How else can we address crime without sending all offenders to prison? An under-utilised tactic in South Africa is that of ‘restorative justice’. Although the concept is much talked-about, practical examples of implementation are hard to find in either government or civil society.

There are probably fewer than 100 people in South Africa with the skills needed for restorative justice programmes - a few government social workers and probations officers at ‘One-Stop’ Child Justice Centres, social workers and probation officers mainly in the North West province, and social workers at NGOs such as NICRO, the Restorative Justice Centre and Khulisa.

The theory of restorative justice relies on the idea that society operates with a balance of rights and responsibilities. When an incident occurs which upsets that balance, the balance must be restored. Members of the community, the victim and offender, must come to terms with the incident and carry on with their lives.

Crucially, the offender must accept responsibility for harm that his or her behaviour has caused harm to the victim. The victim in tun must be prepared to negotiate and accept restitution or compensation for the offender’s wrongdoing. Traditional prosecutions tend to sideline the victim, but in restorative justice the victim is at the centre of the process

Because restorative justice concepts have only been employed in a limited way in South Africa over the last ten years, studies in the South African context to assess recidivism rates have not yet been conducted. However, research in other countries has tended to show lower recidivism rates for restorative justice interventions, both in incidence and severity, than for traditional prosecutions and convictions (see the resources listed at www.restorativejustice.org).

Restorative justice aims to ‘put right the wrong’. This reconciliatory ideal is perhaps a difficult idea to win sympathy in the current punitive climate. But for first-time offenders or those guilty of less serious offences, particularly where the offender and victim know each other, the idea seems like a necessity rather than a luxury.

Campaigning for correctional reform is hardly likely to appeal to most South Africans in the current punitive climate. But a new civil society organisation, the Civil Society Prison Reform Initiative, was launched in 2003 to do just that.

Jean Redpath
Jean Redpath is a research consultant specialising in criminal justice issues