Why the death penalty won’t solve SA’s crime problem

 ·9 May 2015

There is no escaping the attention and energy focussed on all issues related to crime in South Africa at this time.

The rate of violent crime is, once again, in the spotlight as both the famous as well as ordinary members of South African communities continue to be the victims of vicious crime and suffer violent deaths.

Widespread media coverage combines with rumour and anecdote to fuel the ever-growing fear of crime and perceptions of the increased vulnerability of citizens living in a dangerous, crime-ridden society.

Contract crime, which includes murder, attempted murder, rape, assault with intent to do serious bodily harm, common and indecent assault, street muggings, car hijackings and house break-ins, tends to characterise public perception about crime in South Africa.

It is also this category of crime that generates the greatest media interest and feeds into the fear and insecurity that defines South Africans’ collective state of mind about crime.

This, in turn, shapes public response and explains the public outcry over recent, highly publicised rapes and murders featured in the media, and the call for the death penalty to be reinstated.

Death Penalty: Not Even the Beginning of a Solution

South Africa had one of the highest execution rates globally. Solomon Ngobeni was the last person to be officially executed in South Africa in November 1989.

Then President De Klerk declared a moratorium in February 1990 and the death penalty was finally abolished in South Africa on 6 June 1995, as it was in direct conflict with the new South African constitution.

Now, twenty years later some South Africans seem to think that this ruling might have been wrong; Nicro (National Institute for Crime Prevention and the Reintegration of Offenders) would like an opportunity to comment on the call to reinstate the death penalty and its stance on crime and punishment.

When leading criminologists in America were asked in a study conducted at the University of Colorado if they thought that the death penalty was an effective way to deter crime, 88% said that it was not while only 5% said it was.

The rest did not express an opinion. There are few accurate investigations and studies, largely as a result of the many variables such as the cultural and religious beliefs, past events and geographical position which affect crime.

However, the USA provides some interesting statistics, especially as it is a single country but with certain states not allowing the death penalty. In the two decade period between 1991 and 2010, states with the death penalty had 32.45% more murders then those states that had abolished the death penalty.

Renown criminologist Jeffrey Fagan, a professor of law at Columbia University, has publically stated that there is no credible scientific evidence that the death penalty deters criminal behaviour.

Professor Fagan as well as several other experts in the field are firm in their belief that even when executions are frequent and well-publicised, there are no observable changes in crime. “Executions serve only to satisfy the urge for vengeance. Any retributive value is short-lived, lasting only until the next crime,” says Fagan.

In the words of Pierre De Vos, who teaches Constitutional Law at the University of Cape Town Law Faculty, where he serves as Deputy Dean:

“Executing a prisoner is a brutal and violent act. Whether a man or woman is hanged, beheaded, injected with poison or shot, this violence and brutality will be perpetrated by the state in our name and on our behalf.”

“To endorse the death penalty is to endorse state violence and the brutality that necessarily forms part of premeditating killing. The death penalty thus brutalises the whole of society and implicates us all in the kind of violence that we wish perpetrators to be punished for”.

Incarceration and Retributive Justice

Theoretically, the aim of imprisonment is to protect society by separating offenders who are a serious threat to the lives and personal security of members of the community. The other aim of imprisonment is to condemn behaviour that society considers to be highly unacceptable and which constitutes a serious violation of basic values.

Prisons protect the society only to the extent that they temporally restrain offenders who are prone to commit acts of violence, but for other purposes, like deterrence and rehabilitation, they are at best ineffective and at worst, counterproductive.

Whilst imprisonment should, in theory, bring about behavioural change as well as improved education and training, this does not occur on the scale required. On the contrary, persons often leave prison with no improvement to their behaviour, or with their ability and resolve to commit crime having been strengthened even further.

Imprisonment often decreases an offender’s future prospects: most persons leave prison ill-equipped to lead a constructive life in society, and are frequently at a disadvantage because they have been in prison.

The result of imprisonment sometimes makes prisoners reluctant or even unable to obey the rules of a society which subjected them to inhuman conditions or harsh sentences.

Stigmatisation and marginalisation leading to social exclusion often follows imprisonment, resulting in conditions that soon lead to re-offending. This results in what is referred to as the “revolving door effect”.

The use of prison needs to be reduced to a level where the population consists only of those from whom the public needs to be protected or who have committed serious, violent offenses.

The community at large should also be involved in the process of re-socialising offenders. To reach such a position will clearly be a lengthy process and will need to be accompanied by a considerable amount of public education.


Alternatives to Retributive Punishment

Nicro has for many years vigorously promoted reconciliation and healing, and has dedicated its research and services to addressing the causes of crime and restoring the balance affected by crime.

It is widely accepted, and Nicro agrees that there should be consequences for criminal wrongdoing, and that most convicted persons should have a sanction imposed on them. The nature of this sanction – imposed by society through the courts – is, however, a complex issue that needs careful consideration.

It is generally accepted that sentencing has four objectives:

  1. Punishment and retribution,
  2. Reduction in crime through incapacitation and deterrence,
  3. Protection of the public, and
  4. Rehabilitation and reform.

Punishment and retribution through the use of incarceration as a response to crime has escalated over recent years, more especially since the abolition of the death penalty. This is perceived as a response by policy makers to the increasingly punitive public attitude to South Africa’s high crime rate and the violent nature of crime.

Punishment, even under life imprisonment, should not be viewed as a form of revenge. Instead, the re-socialisation of offenders towards becoming law abiding citizens should be the primary goal.

The prison institution also has the duty in the case of all prisoners to strive towards their re-socialisation and to preserve their ability to cope with life. They should also counteract the negative effects of incarceration and destructive personality changes which go with it.

The effectiveness of imprisonment as a sanction has, however, always been the subject of debate. Its efficiency as a means to control crime has been exaggerated, and the damage that it does to what is, in effect, an already disadvantaged group in society, is underrated.

Nevertheless, imprisonment plays an important role in certain targeted cases, such as for those regarded as dangerous to society, violent offenders, repeat offenders and offenders who commit serious crime.

It is Nicro’s contention that other offenders who do not fall into these categories should be considered for non-custodial sentences that are effective and in which society can have confidence.

South African law provides for a wide range of non-custodial sentences and our courts should have no difficulty in determining appropriate sentences.

Nicro strongly advocates a problem-solving rather than a punitive approach for certain categories of offenders, using non-custodial sentences to achieve the above objectives.

Categories of offenders who could be considered should include persons suffering serious mental health problems; persons suffering chemical addictions; first offenders; offenders charged with less serious offences; and young offenders who traditionally show a high propensity for behaviour modification and reform.

Examples of non-custodial sentences provided for under South African law include the use of fines, suspended sentences, postponed sentences, community service, probation and supervisions, as well as attendance of treatment and educational programmes.

All of these can be imposed with conditions such as attendance of treatment, education and training programmes, conditions pertaining to reparation and restoration, and specific conditions related to the individual person and case.

It is in the imposition of non-custodial sentences as this pertains to programme attendance that Nicro sees potential for growth and far greater opportunities to contribute to a reduction in crime.

By Soraya Solomon, Nicro CEO

(This article has been edited for brevity)

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