Imprisonment in South Africa
The idea that the government has the exclusive right to mete out punishment is a development which coincided with the rise of the nation-state. In ancient times, behaviour which was considered to be in violation of social norms was dealt with by the immediate community and usually took the form of restitution and compensation. These traditional justice systems were thus more concerned with the victim and restoring the original order or harmony prior to the offence than with vengeance or punishment.
The prison is not indigenous to Africa, but is a Western institution. The forerunner of the prison was the workhouse, an institution which developed in line with the labour trends of the Industrial Revolution. When the concept of imprisonment was originally developed in England, prison was intended to accomplish much more than simply house criminals and administer to their basic needs while serving their allotted sentences. Rather than simply warehouse criminals for a specific time, the duty of the prison system was to transform the individuals in its care into respectable, law-abiding citizens.1 The workhouse concept was evident in the corrections strategy employed in these first prisons, where criminals were instilled with the virtues of good citizenship through solitary confinement and hard labour. It was expected that the shiftless lazy vagrant, once broken by extended isolation, would welcome the diversion of manual labour. The desired result was a healthy appreciation for the rewards of hard work and a permanent memory of the torment of solitary confinement, which would deter future criminal behaviour.2
Prisons were introduced in South Africa by Dutch colonists, but it was after the British occupation that the penal policy, including incarceration, began to take shape. Historically in South Africa, as in England, the duty of the prison administration to reform criminals was interpreted in order to accommodate the economic needs of the age. With the abolition of slavery in 1834, policy began to be shaped by the countrys labour demands. During the 1840s and 50s, many public projects were constructed using prison labour.3 Inmates at the Breakwater Prison, now a historical landmark, were used to construct the breakwater which protects the Cape Town waterfront.
During the late 1800s, labour demands of the mining industry began to impact on policies for imprisonment. The development of the South African prison system thus began to parallel that of another typically South African institution: the mining compound. These compounds were designed to not only house but also control thousands of workers who were migrant labourers, separated from their families and homelands.4 The first private prisons in South Africa were operated by the De Beers Mining Company. De Beers constructed prisons and the state provided the prisoners to fill them. The mining company paid the expenses to incarcerate their labourers and also paid the state for the use of their prison labour. By the end of the 19th century, the De Beers Diamond Mining Company was using over 10,000 prison labourers daily.5 The first racially segregated prison was constructed in Kimberley, and eventually both prisons and mining compounds were segregated along tribal lines as well.6
Many of the prisoners sent to work in the mines were incarcerated for violating pass laws, which had been in effect in one form or another for nearly 100 years before the Nationalist government came to power in 1948. Thus, incarceration of Africans for minor infractions such as pass offences could reliably supply the necessary labour for the growing economy throughout the 1900s. In this way, the state effectively became, "the provider of unskilled black labour for the mines through the penal system."7
Local convict labour was integral to the growing South African mining industry until as recently as 1952. In the later 1950s, prisoners were used for farm work, and dozens of special farm prisons were constructed for this purpose. In 1959, an act of Parliament officially abolished prison labour, but replaced the practice with policies that prescribed "useful and healthy outdoor work" for short term prisoners.
Although the practice persisted in South Africa, internationally the use of forced prison labour began to fall out of favour during the 1960s. Without the economic incentive to provide prison labour, many governments began to attempt to reduce prison populations through the introduction of parole and experimenting with alternatives to incarceration. The current trend, however, is towards increasing imprisonment and several industrialised nations have seen an explosion in their prison populations in recent decades.8 Arguably, this is because prisons have become a profitable industry, and the economic incentive has thus continued to shape criminal justice policy.
Prisons in the new South Africa
Like the countries of Eastern Europe and the former Soviet Union, South Africa is still considered a transforming democracy. After the fall of the Berlin Wall, imprisonment in the transforming political states exhibited two phases. The prison population decreased at first as political prisoners from the old regime were released and new government structures were organised. The next phase saw the prison populations increase as the uncertainties and difficulties of a new economy, new institutions, and an entirely new government resulted in increased criminal activity. When a fledgling state is struggling to fill the vacuum left by the elimination of the previous system, criminal activity will grow in strength in relation to the weakness of the new government.9
South Africa is not an exception to the phenomena experienced by the transformation of the formerly communist states in Europe. Crime increased rapidly from 1992 before eventually stabilising in 1995. An analysis of crime trends since 1980 provides evidence that crime in South Africa increased during the transition to democracy and levelled off with political stabilisation, which is generally considered to have occurred by 1996. As Oppler points out, this should not be interpreted to mean that crime is a fundamental aspect of democracy but rather that, "dramatic changes in societies which move from authoritarian to democratic governance often weaken state and social controls, generating increased levels of crime."10
Crime is not only affected by political instability in a country, but is also considered an anticipated consequence of development. As Shaw explains, "Development generates greater opportunities for crime while also causing inequalities which encourage crime."11 Over time, however, the nature of crime changes with sustained development, as more developed nations tend to face crimes against property while the lesser developed countries deal more often with violent crimes. Crimes against property will understandably increase as more economic growth translates into more cars, jewellery or other items of value which are commonly targeted for theft. This should not be interpreted to mean that development brings higher crime, because although rates of the occurrence of crime may increase, the impact of those crimes and the non-violent nature of them makes them less serious.12
Since 1997, the crime rate in South Africa has increased, as has the prison population. The increase in prison population is mostly attributed to a higher number of prisoners awaiting trial.13 Figure 1 depicts the growth of the prison population from 1995 to 2000. The graph shows the increase in the number of unsentenced prisoners, which has more than doubled in the past five years. Justice system delays in processing awaiting trial prisoners are largely responsible for the increase in the unsentenced prisoner population in South Africa. The current estimated number of criminal cases outstanding is nearly 200,000, and has increased 21% since 1999.14
Source: Department of Correctional Services Annual Reports
Court backlogs and crackdowns on crime are not exclusively responsible for the continuing rise in the prison population. The implementation of harsher sentencing and the increasing proclivity of politicians to espouse tough on crime rhetoric should be considered cause for alarm. The Criminal Law Amendment Act of 1997 introduced a system of minimum sentencing for certain types of crimes. The minimum sentences are not required, but a judicial officer can only impose a lesser sentence when justified by "substantial and compelling circumstance."15
The effect of this minimum sentencing legislation has not necessarily resulted in more prison sentences but rather has resulted in longer prison sentences. The critical mistake which misleads the bulk of the US population seems to be reoccurring here in South Africa: the misconception that increased incarceration alone can reduce crime. The primary challenges for South African prisons are not unlike those overseas, and include issues of overcrowding, awaiting trial prisoners, gang activity, recidivism, and public health. However, importing policies which have failed in other countries is unlikely to be successful. Similarly, policies which have succeeded elsewhere must be adapted for the South African aspects of any given problem or situation.
The majority of the prisons which exist in South Africa today were constructed during the Apartheid era, and reflect the significant link between the treatment of prisoners and the labour needs of the economy. The typical prison cell is almost indistinguishable from a typical mining dormitory. Referred to as communal cells, each one is intended to house anywhere from 9 to 18 prisoners, containing only beds and a single toilet. The cells were designed with the idea that prisoners would be out working during the day and would only be in them to sleep at night. For this reason, the cells do not include desks, tables, chairs or even much room for simply moving around. Due to overcrowding and staff shortages, prisoners are regularly locked up for the greater portion of the day and in many instances are only afforded an hour outside to exercise.
Overcrowding exacerbates the intrinsic design problems of prison cells, with the number of inmates in most prisons approaching, if not exceeding, double their intended capacity. The South African prison system was designed to accommodate 100,668 and currently struggles to accommodate an actual population of 172,271.16 The degree of overcrowding varies considerably by prison and also by province. One of the worst prisons in terms of overcrowding is Johannesburg Medium A, with 6,250 prisoners incarcerated in accommodation meant for 2,630.17
In most severely overcrowded prisons, as many as 60 prisoners are kept in cells intended for 18. Beds are triple bunked and placed directly next to each other, and sometimes there are more prisoners in a cell than there are beds. The most overcrowded prison in South Africa is the awaiting trial prison in Johannesburg which is at 393% occupancy, while the province with the severest overcrowding is the Northern Cape, which is operating at an overall capacity of 231%.18
The overcrowding problem in South Africa is directly related to the increase in awaiting trial prisoners. The sentenced prisoner population has increased 17% since 1995, while the number of unsentenced prisoners has increased 164%.19 Approximately one third of South Africas prison population are unsentenced prisoners awaiting trial.20 Two factors contribute most significantly to the increase of awaiting trial prisoners: inappropriately designed and/or implemented bail laws and inefficiencies in the processing of cases by the judicial system. The Criminal Law Amendment Act of 1997 has made release on bail much more difficult and has toughened sentencing laws. These measures are intended to reduce crime, but the more likely result will be increased overcrowding of the prison system as the number of prisoners awaiting trial increases and those who are eventually sentenced are incarcerated for longer periods of time.21
Delays in the processing of cases by the judicial system has resulted in a dramatic increase in the average period of imprisonment for prisoners awaiting trial. The number of awaiting trial prisoners incarcerated for longer than three months has increased nearly seven fold since 1996, and the current average detention time is approaching five months.22 It is not uncommon for unsentenced prisoners to spend up to four years awaiting trial, usually in conditions which are even worse than those of the sentenced prisoner population.
When a person is imprisoned awaiting trial, it is for one of two reasons: bail is denied, or the person cannot pay bail. Bail is denied if the court decides that the person is unsafe for release because they pose a danger to the community, or the court believes that the person is unlikely to attend court to stand trial. If the court determines that the arrested person is not a threat to the community and is likely to appear on his or her court date, then a bail amount is set. These amounts are usually in proportion to the seriousness of the crime, but sometimes even very low bail amounts are too much for an awaiting trial prisoner to afford.23
Of the 59,275 awaiting trial prisoners on 31 July 2000, 40,315 had been denied bail. Of the remaining 18,960 prisoners who were granted bail, more than 60% had bail amounts fixed at R1,000 or less. Given that the Department of Correctional Services estimates that it costs R88 per day to incarcerate each prisoner, it follows that the state pays more than R1 million every day to incarcerate people as yet not guilty of any crime other than being poor.24
The prisons which are the most severely overcrowded are usually the Medium A prisons, which are designated for awaiting trial prisoners. Although programmes and activities for sentenced inmates are by no means abundantly available for the sentenced prisoners, almost none are provided for the unsentenced prisoners. On the other hand, it is not uncommon for awaiting trial prisoners to be intermingled with convicted prisoners in the same prison.
A defining feature of the prison environment in any country is the presence of gangs. The psychology of a prisoner is often one of helplessness and insecurity which gang membership helps to alleviate.25 Also, in overcrowded and understaffed conditions, the loss of order or control by the management creates a power vacuum which gang structures readily fill. In many areas, outside gangs flourish in prison as many outside gangs are involved in criminal activity, resulting in a high proportion of members being in prison. However, not all gang activity in prison is related to gang activity outside of the prison. In South African prisons, the prevalent gangs do not operate outside of prison, and members of the same gang from outside of the prison may join rival gangs inside prison. Once in prison, however, allegiance to the prison gang takes precedence over membership in outside or street gangs.26
Prison gangs in South Africa are unique in that they have been in existence for over 100 years and their organisation is nationwide. The two most powerful prison gangs in South Africa are the 26s and 28s. The original 28 gang existed in the mining compounds as well as the prisons, but by 1920 was permanently entrenched in several prisons while the gang structures outside of prison had all but dissipated. Sometime in the early 1900s, a former lieutenant of the 28s started his own gang, the 27s. One explanation for these names is that at the time of the split, the original leader had 28 fighters to the split-off groups 27, although others claim that the first group had eight officers and the other had seven.27
When the leader of the 27s was imprisoned in Pietermaritzburg, a group of six non-gang members smuggled tobacco and other coveted items for him. In return, the 27 leader gave the six permission to start their own gang, which became known as the 26s.28 Today, the 27s and 26s are still closely intertwined and the 27s pledge to protect the 26s in exchange for the contraband or other items of value which the 26s specialise in procuring. Other gangs exist, including the 25s and the 29s, but the 26s and 28s remain predominant.29 According to their intricate codes of conduct, the two gangs are able to co-exist although tensions exist between the established and some of the newer, recently formed gangs. Instances of gang violence are not uncommon, although they are usually not random but carefully deliberated within the gang hierarchy. Indeed, a decision to kill a non-member is considered by a judicial panel and resolved by the signing of a death warrant. The gang structures of both the 26s and 28s parallel that of a colonial or paramilitary institution, and the tight organisational systems help extend each gangs power nationally.30
The prevalence and power of gangs may be related to the incidence of prisoners consistently returning to prison. Although the Department of Correctional Services does not maintain recidivism statistics, academic research has estimated that between 85% and 94% of prisoners will re-offend.31
Conditions in South African prisons are often traumatic, and will therefore severely undermine any attempts at a positive outcome from imprisonment. Muntingh explains, "When people are living in conditions that are inhumane and are often treated as something other than human, it is unlikely that they will treat other people humanely."32 At least 95% of South African prisoners will return to the community after serving their sentences and a good portion of these will serve sentences of six months or less. Without reintegration services upon their release, it is not surprising that prisoners completing their first sentence will find themselves hardened by their experience and either unable or unwilling to pursue non-criminal endeavours. The conclusion of the British White Paper on Crime, Justice and Protecting the Public seems to hold in South Africa as well: "Prisons can be an expensive way of making bad people worse."33
The departments emphasis on security overshadows programmes aimed at reintegration of offenders, perhaps because escapes from police or correctional services custody is an issue which is consistently reported in the media. Of the 459 escapes reported by the Department of Correctional Services during 1999, 213 were from prison. The department has focused increasing attention on escapes and has introduced programmes to address the issue as well as set targets for reducing the actual number each year. The department is proud of its achievement in reducing escapes from 1,244 in 1996, to 989 in 1997 and less than 500 for the past three years.34 Many critics argue that this is only minimal progress, and should not be applauded because the expectation is that no one should be able to escape and therefore a goal of zero is the only acceptable target.
The term escape may not be accurate, as it conjures images of diligent tunnelling or well armed convicts overcoming the states attempts to keep them confined. A better term for the South African situation might be self-initiated or extra-judicially approved release. Most prisons are decades old and in desperate need of repair, and even those which are adequately maintained still have inherent security problems, such as insufficient fencing, lighting, or visibility.35 Staffing shortages and lack of training also contribute to the number of escapes, although the portion of escapes which are staff-assisted are difficult to determine.
While issues of security gain more media coverage, what should be of greater concern to the public is the lack of sufficient attention to health issues in prison. Many prison conditions have an adverse effect on prisoners health, and many prison health issues affect the greater community to the extent that they are actually issues of public health. Overcrowding inevitably leads to poor sanitation and hygiene, and the strain it adds to already limited resources impacts on the provision of basic services including adequate nutrition and health care. In South Africa, out of the 74,362 complaints received by representatives of the Judicial Inspectorate, one quarter were related to food and health care. Prisoners cited these two categories of complaints more frequently than any other category.36
Understaffing coupled with overcrowding also limits the amount of time prisoners are able to spend outside of their cells, and the resulting lack of movement, let alone exercise, will also take its toll on prisoner health. The impact of emotional stress and psychological trauma on prisoners physical health has also been documented in other countries, although similar studies have not yet taken place in South Africa.
Because all but a very small percentage of prisoners will return to the community upon completion of their sentences, many issues related to prisoner health become issues of public health when they are released. Due to poor medical treatment of contagious diseases which thrive in the prison environment, prisoners return to the community sicker than they left and take their sicknesses with them. The cost of missing out on this intervention opportunity, to reduce the incidence of disease both inside and outside the prison, is great. The illnesses that are particularly prevalent in prisons include hepatitis B and C, syphilis, tuberculosis, and HIV/AIDS.37
While reliable statistics are not available on the number of HIV positive prisoners, the characteristics of the typical prisoner are those of a demographic at high risk for HIV infection. As a result, many prisoners will already be HIV positive upon entering the prison. Given that a typical South African prisoner is a young black man, it is reasonable to expect that the infection rate inside prison is at least as high as it is for this demographic outside of prison. Table 1 shows the actual and projected infection rate for black men aged 20 to 34 in South Africa. Using this data, it can be estimated that the current HIV infection rate in South African prisons is at least 30%.
Table 1: Actual and projected HIV/AIDS infection rate among black men aged 20-34 years in South Africa
|"MetLife Doyle Model, Scenario 225, published in 2000."
In addition to the number of prisoners who are HIV positive before they arrive in prison, there is also an as yet undetermined portion of inmates who will contract HIV while incarcerated. The prison environment creates many situations of high risk behaviour for HIV transmission. The incidence of forced, coerced, and consensual sodomy is a reality of prison life, and is considerably increased by overcrowding and gang activity. This type of sexual intercourse carries the highest risk of HIV infection, particularly in cases of rape. Forced anal intercourse is more likely to result in rectal tearing, which increases the likelihood of HIV transmission as the virus has a greater probability of entering the bloodstream.
HIV transmission is also increased by the presence of untreated sexually transmitted infections (STIs). Some STIs, such as herpes and syphilis, result in genital sores. Breaks in the skin in the genital region also increase the likelihood of HIV transmission. The prisoner population has a higher incidence of STIs and is less likely to have access to treatment facilities. Thus, prisoners are more likely to have untreated STIs than the general population and therefore are also at greater risk for transmitting and contracting HIV.
As the infection progresses, an HIV positive person will have a greater concentration of the virus in his or her body fluids, and thus the probability of that person transmitting the virus increases. The conditions in prison cause HIV infection to progress more rapidly, which means that prisoners will have a higher probability of infecting others when they are reintegrated back into the community.
Less than 3% of prisoners are serving sentences of 20 years to life. Nearly 75% serve a sentence of less than seven years.38 Even if prisoners do not contract HIV while in prison, there are a substantial number of HIV positive prisoners released each year. Prisoners usually come from communities which suffer a great deal from poverty, unemployment, and crime. These are also the communities which are hardest hit by HIV/AIDS. This means that areas which already have a higher proportion of HIV positive people also have a higher proportion of people who have been sent to prison. When people are released from prison and return to these struggling areas, the effect will be an even greater increase in HIV infection.
AIDS is the leading cause of death in prison, not only in South Africa but in countries such as the United States as well. Of the 1,087 natural deaths in South African prisons last year, at least 90% were from AIDS-related causes.39 The number of deaths in prison has increased more than five fold since 1995, and continues to climb. The Judicial Inspectorate has projected that in 2010, nearly 45,000 prisoners will die while incarcerated.40
When a person becomes infected with HIV, he or she may not develop AIDS for five or even ten years. A person in progressed stages of AIDS is usually bedridden, unable to eat, and extremely weak. In prison, this last stage seems to last less than six months. The amount of time between infection with HIV and the onset of full-blown AIDS is affected by nutrition, stress, and availability of medication. In prison, nutrition is poor, the conditions of overcrowding are stressful, and there is little medication available. There is no information on how long it takes for an HIV positive prisoner to develop AIDS in South Africa. In other countries, the effects of the prison environment cuts in half the life expectancy of an HIV positive prisoner.41
When a persons immune system is compromised by infection with HIV, they become more susceptible to other illnesses, referred to as opportunistic infections. The most common opportunistic infection in South Africa is tuberculosis (TB). HIV and TB are a deadly combination, as each infection speeds the progress of the other. It is estimated that one third of HIV positive people world-wide are also infected with TB.42
TB is caused by tubercle bacilli, which infects a persons lungs and is a very contagious disease. One of the symptoms of TB is severe coughing, and a person can catch TB by breathing the air contaminated by an infected persons coughing. Unlike HIV, TB can spread by simply sharing a cell with a person who is sick with TB. Not everyone who becomes infected with tubercle bacilli will develop active TB, but a person with HIV is 30 times more likely to develop active TB than a person who does not have HIV.43 Conditions in prisons such as overcrowding and poor ventilation also increase the spread of TB.
Many adults can be TB carriers but will not develop any symptoms until their immune system is compromised, such as by infection with HIV. An asymptomatic TB carrier infected with HIV thus becomes actively contagious, contributing to increased TB infection in the rest of the population.44 In this way, HIV causes an increase in the spread of TB, and other infectious diseases, to other HIV-negative people. It is estimated that in sub-Saharan Africa, "one out of every four TB deaths among HIV-negative people would not have occurred in the absence of the HIV epidemic."45
Unlike HIV, TB is both highly contagious and curable. The most common form of TB is pulmonary, meaning that the illness infects the lungs. Symptoms usually include violent coughing, involving the dispersion of infected sputum. Inhalation of airborne droplets of infected sputum is the most common means of contracting TB. Thus, contagiousness of TB can be compounded by areas which have a great deal of people crowded into a small, poorly ventilated space.46
The Department of Correctional Services and criminal justice
The Department of Correctional Services is only one component of the criminal justice system. A successful criminal justice system will serve to reduce and deter criminal behaviour. However, this goal does not belong to the prisons alone but also to the police, courts and other government departments such as education and welfare. The South African criminal justice system begins with the police who arrest alleged perpetrators of crimes and gather evidence. The accused person is then charged by the prosecution service and required to appear in court for his or her trial. The outcome of the trial will either be the conviction or acquittal of the person arrested.
In 1999, the police recorded about 2,380,820 crimes, of which 562,821 went to court and 257,391 were prosecuted. Of the cases that were prosecuted, 202,587 resulted in a conviction.47 Those who are convicted will also be sentenced, and this sentence could range from a wholly suspended sentence to a prison term. Only after the accused individual is convicted and sentenced to prison does the Department of Correctional Services become involved. The role of DCS is then to incarcerate and rehabilitate the convicted criminal, and to prepare him or her for reintegration into society. If this process is successful, then the person who is arrested, convicted and imprisoned will eventually be released and will not commit another crime.
One aspect of criminal behaviour which is not commonly understood is that a primary deterrent for a would-be criminal is the likelihood that he or she will be caught. The effectiveness of the police force in deterring crime can be seen in its ability to maintain an appropriate presence, respond quickly to crisis situations, efficiently investigate crimes and make timeous and accurate arrests. Car guards in a parking lot do not for example actually apprehend car thieves. Rather, it is their presence that deters the theft from taking place because it increases the likelihood that the car thief will be caught.
Even if the penalty for car theft is death, if the police force is ill-trained, ill-equipped, and understaffed to the point that it is unlikely that any arrest will be made or that sufficient evidence will be gathered to support a conviction, then even the death penalty will not deter crime. Similarly, when a car thief is strolling through an unguarded parking lot, he is more likely to be thinking about the visible signs of alarm systems or gear locks than he is about the minimum sentence for car theft. For this reason, increasingly harsh sentencing laws cannot deter crime without appropriate support from the police department. Laws which call for longer sentences and refusal to grant bail, without increasing the resources available for enforcing them, will result in larger prison populations but not necessarily a reduction in crime.
A common misconception, perpetrated by politicians who exploit the publics fear of crime in order to gain votes, is that building prisons can reduce crime. Research in the field of criminology and penology has consistently found that prisons do not deter crime. Muntingh, from the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO), observes
"Throughout the world, people are imprisoned in vast numbers without it having resulted in any significant reduction in crime. The threat of punishment also does not appear to have any significant impact in terms of preventing people from committing offences. The fact that so many current prisoners are in fact recidivists and have been in prison before, clearly shows the deterrence approach does not hold much promise as a crime reduction strategy."48
Given that the Department of Correctional Services has no role in the arrest, conviction, or sentencing components of the criminal justice system, it becomes clear that the DCS cannot operate in isolation as a tool for the reduction of crime. The only role that prisons can play in reducing crime is through rehabilitation and reintegration of offenders upon their release.