Alternative Sentencing
in South AfricaSince the early part of this decade, South Africa has been searching for alternative methods of punishment and criminal justice. Like many other countries in the world, we have been faced with an ever-increasing number of offenders being held in overcrowded prisons. The majority of offenders are people who have committed relatively minor property offences. It is also widely recognised that prisons have failed in their task of intervening in the vicious circle of offending and re-offending; most prisoners in prison are recidivists.
Alternative methods of justice have been attempted through the formal criminal justice system. However, new systems are being developed which aim to keep offenders out of the criminal justice system, looking instead to the community to resolve the problems. Such developments are occurring within the restorative justice framework, which maintains that justice should promote healing of the individual and of society. Rather than merely focusing on the establishment of guilt, offenders are encouraged to understand the harm they have caused and to take responsibility for it. The process involves the offender, family and community in identifying the problem and in finding solutions. The place of victims is recognised as central rather than peripheral to the process.
For a long time, courts could only hand down sentences involving fines, imprisonment, corporal punishment or the death sentence. (The death penalty and corporal punishment were ruled unconstitutional in 1994 by South Africa's new Constitutional Court). In 1992, a new sentence was introduced which sought to provide an alternative to imprisonment. The sentence of correctional supervision is a community-based sentence which can be imposed for any offence, even serious offences such as murder. Under correctional supervision, an offender may be sentenced to imprisonment for an initial period, after which he or she may be required to serve the remainder of the sentence in the community. Alternatively, the offender could be released immediately to serve correctional supervision in the community.
Correctional supervision aims to provide a means of rehabilitation within the community, thus preserving the important links which the offender may have with his or her family or community structures. While incarceration results in a loss of employment and the offender's inability to support his or her dependants (resulting in additional costs for the State), correctional supervision allows, or encourages the offender to be employed. Since offenders still participate in the world, they are able to make decisions and take responsibility for their life. Through participation in rehabilitative programmes, offenders are also encouraged to take steps towards correcting their criminal behaviour.
A person sentenced to correctional supervision remains under the supervision and control of the Department of Correctional Services until the sentence expires. Supervision takes the form of direct monitoring of the offender's movements and compliance with the sentence's conditions, as well as regular support sessions with Department social workers. Conditions of the sentence may include a period of house arrest; the requirement that the person be home between specified hours of the day; that he or she attends a treatment programme; abstinence from alcohol or drugs; prohibition from leaving a magisterial district; or a certain number of hours of community service. Any or all of these conditions may be imposed.
Since its introduction in all South African provinces, there has been increasing use made of this sentence. In 1995, the Department of Correctional Services had 37 000 offenders passing through this system with 80 percent successfully completing the sentence. However, correctional supervision is not without its problems. Many courts are reluctant to use this option as they do not see it as a sufficient punishment. Another problem is that many of the offenders do not live in areas which can be easily monitored. They do not have fixed addresses or employment, and so do not qualify for the sentence. Certain population groups, by virtue of their wealth and greater social stability, tend to qualify more readily for this option: more middle-class white people are being sentenced to correctional supervision than to imprisonment.
Correctional supervision is a creative sentencing alternative, but it still follows a lengthy criminal justice procedure. The process through the courts may be time-consuming and it is an accusatory process which removes participation from the offender and discourages the offender from taking initiative or responsibility for dealing with the offending behaviour. Many believe that a more participatory system needs to be developed, which diverts the offender from the criminal justice process. Diversion occurs within the framework of deinstitutionalisation and restorative justice. Several magisterial districts have been experimenting with a diversion process, particularly with juvenile offenders.
Diversion is sanctioned by Section 6 of the Criminal Procedure Act, and can be used where the offence committed is relatively minor. In such cases, where the offender has admitted responsibility for the offence, the state prosecutor can suspend the prosecution of the case upon fulfilment of certain conditions. This is usually on the condition that the offender attend a particular treatment programme. Charges are withdrawn after the conditions have been fulfilled.
The National Institute for Crime Prevention and Rehabilitation (NICRO), which has been spearheading the diversion programme since 1992, offers several offender programmes according to the type of offence and the offender's needs. Diversion has thus far only been applied in a very small number of cases, and NICRO's capacity to offer programmes is still very limited. However, should this system be fully developed, it promises to be an effective model for keeping offenders out of the criminal justice process.
A far more inclusive and comprehensive system of restorative justice, the Family Group Conference (FGC), is currently in the process of development in South Africa. The FGC, which emerged in New Zealand and was successfully adapted to Australia, is used in the cases of juvenile offenders. Instead of bringing the offender to court for trial, a forum is created where those central to the offence (the offender, his or her family or caregiver, the victim, and community representatives) are given the opportunity to discuss and arrive at solutions to the crime. The offender is held accountable for his/her actions. This may take the form of compensation for the victim, service to the community, or even participation in a particular programme. The forum is given the freedom to determine an appropriate solution as long as it does not contravene criminal law.
In South Africa, the FGC will be restricted, at least initially, to non-serious cases, and will be used primarily for juvenile offenders. Serious cases will be referred through the criminal justice process.
The FGC builds on popular older justice models, such as customary African practices. However, this system strives to provide a more systematic approach which facilitates better monitoring. This programme is still at the pilot stage. It has not yet been incorporated into legislation and it is too early to determine its success.
In order to be successful, these initiatives require the support of policy-makers and officials in the criminal justice system. The Minister of Justice has stated a commitment to making justice more accessible to people through the simplification of the legal process and greater use of alternative dispute resolution processes. However, the justice system is threatened by public fears of increasing levels of crime and the consequent pressure for "tough action" against criminals. It is often left to non-governmental organisations to lobby for and devise means for the implementation of these initiatives, often with little financial support.
Amanda Dissel is Manager of the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
In Reconciliation International, No. 4, August 1997.
© Centre for the Study of Violence and Reconciliation
