In South Africa, the concept of non-custodial sentencing or alternative sentencing other than prison has been interlinked with the Criminal Justice System for centuries. Penal activists like the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) have, over the years, advocated for criminal justice reforms which include community service orders as an alternative to imprisonment (NICRO, 2018). Non-custodial sentencing options have been on South African statute books for some time, yet, overcrowding continues to be one of the vexing concerns for the DOJ & CD and the DCS, to an extent that the Minister of DOJ & CD and the DCS, Minister Masutha, has alluded to the challenges faced by the department:
“[D]espite some achievement made in technology and infrastructure modernisation, overcrowding is still one of the major inherent challenges that the department is faced with, due to a continuous increase in the inmate population within DCS correctional centres” (DCS, 2018: 8).
The Minister further states that the department, in collaboration with strategic partners, can reduce overcrowding once the strategy is implemented. This strategy focuses on the diversion of remand detainees (RDs), advocating for non-custodial sanctions or alternatives to imprisonment, consideration of offenders for parole and correctional supervision (ibid).
3.3.1. Rationale for the implementation of non-custodial sentencing
Non-custodial sentencing has considerable potential value for offenders as well as the community. Hence, it is viewed as an appropriate sanction particularly for offenders who are not likely to repeat the offences. This includes offenders convicted for minor crimes as well those who need psychiatric and/or social help. These are cases where incarceration cannot be considered an appropriate sanction as it damages community ties, hinders reintegration into society and therefore reduces offenders’ sense of responsibility and their ability to make their own decision (Mills, 2011). Non-custodial sentencing makes it possible to control an offender’s behaviour, at the same time allowing it to evolve under natural circumstances. Non- custodial measures tend to reduce social costs since the administration of criminal justice imposes a very heavy financial burden on the state. The individual offender and ultimately the entire society benefit from the use of non-custodial sentencing. The encouragement of community involvement in the implementation of non-custodial sentencing is of paramount importance. The White Paper on Corrections dictates that correction is a societal responsibility (DCS, 2005). Involvement of the community is necessary for the successful reintegration of the offender into society. Community involvement can reduce the risk of stigmatisation. Therefore, non-custodial measures are less expensive for society in general, than deprivation of liberty.
While imprisonment is necessary in many cases involving violent offenders, it does not always constitute a panacea about either crime prevention or social re-integration of offenders. Furthermore, in many countries the correctional services systems (with South Africa being no exception) face major challenges because of overcrowding and outdated facilities. The result is that offenders often find themselves in deplorable conditions whilst in detention. These conditions tend to have adverse effects on their physical and mental health as well as impeding their educational and vocational training. Therefore, their chances of future adjustment to an ordinary life in the community are affected (DCS, 2018). This has resulted in growing
scepticism with regards to the effectiveness of incarceration, compelling leadership to develop other useful measures to help offenders while keeping them in the community. Various reports confirm that more than 62% of sentences imposed in South Africa are incarceration-related (Hopkins, 2018). This is despite several scholars Camper, 2012, Coghlain,2012, Muntingh, 2005, Nicro,2018) agreeing that non-custodial sentencing has proven itself to have several benefits. Hence the growing scepticism with regards to the effectiveness of incarceration. Several principles need to be considered when non-custodial sentencing is implemented. These principles describe the fundamental aims, the scope as well as the legal safeguards of non- custodial measures in the administration of justice.
One needs to understand that the underlying principle of non-custodial sentencing is to punish the offender in the community where the offence was committed, away from prison. This enables the offender to offer some compensation to the community, whilst ensuring the community that the offender’s behaviour is being punished and corrected (Singh, 2007:151). This implies the individualisation of sentencing in a transparent manner that permits the offender to continue working, studying and being involved in family life. This, therefore, requires that in order to safeguard human rights, human dignity standards must be set for the imposition as well as the implementation of restrictions and conditions when non-custodial measures are implemented. Therefore, it is in supporting the above imperatives that those who advocate for non-custodial sentences argue that, sending offenders to prison is unwise, as more prisoners could be dealt with by community sentencing resulting in cost-effective measures and reducing recidivism (Mills, 2011; NICRO, 2018).
Studies conducted both internationally and locally support the notion that the underlying principle of non-custodial sentencing is to punish the offender in the community, where the offence was committed away from prison. In this way, correction is visible to the community and instils a sense of community responsibility (Singh, 2007; Campers, 2012; NICRO, 2018). Researchers argue that imprisonment creates an endless cycle of crime and punishment as overcrowding presents a barrier to the implementation of rehabilitation programmes and institutions become ‘universities of crime’. This is echoed by one offender being interviewed in Pollsmoor prison by psychologist Sandy Hoffman (cited by Hopkins in City Press, 2018):
“I am scared of the outside world, because in prison I am a gang leader and a somebody, but outside prison I am nobody and a criminal”.
The above observation supports studies that have found high rates of recidivism amongst offenders who were incarcerated compared to those who have been sentenced out of the correctional system. In submitting their comment on the revised parole system for South Africa, NICRO (2018:1) states that:
“Recidivism remains high and to date we do not believe that the present factors that are contributing to these challenges have been sufficiently addressed by the Department of Correctional Services”.
The high rate of recidivism has been alluded to, by the then National Commissioner Modise in Hopkin (2018) who has been quoted as saying that the recidivism rate of offenders is between 60% and 70%. This places South Africa as the country that has the highest incarceration rate on the continent, ranking 12th in the world. The question asked by non-custodial sentencing advocates is: why does Government not focus on keeping people out of prison, which is a more cost-effective and humane solution? In addition, overcrowding has resulted in several challenges, including the spread of TB, gang violence and poor sanitation. These challenges have led to litigations with the government as the defendant (Hopkins, 2018). Furthermore, NICRO questions the amount spent on social reintegration by the DOJ & CD and the DCS. This amount is 3% of the DCS budget, while the recidivism rate is at 67% (Hopkins, 2018).
Overcrowding continues to place a heavy burden on the correctional system. It remains a burden on correctional infrastructure and the capacity of correctional services managers. This has led the Lawyers for Human Rights (LHR) taking the DOJ & CD and the DCS to court over Pollsmoor prison’s abominable conditions, especially in the remand section, where in 2016 overcrowding was at 300% (Hopkins, 2018). The argument advanced by human rights lawyers as well as non-governmental organisations (NGOs) is that the government needs a complete mind-shift to invest in more reintegration efforts and alternative methods of incarceration.
3.4. Polices and Legislative Framework for the Implementation of Non-Custodial