Source: ISS
Talking Policy with a Forked Tongue: Why we Should Re-think Harsh Sentencing
Chandré Gould, Senior researcher, Crime and Justice Programme, ISS Pretoria Office
Is prison intended to be curative or punitive? Can or should it be both? Do harsh sentences deter criminals? Is punitive sentencing one of the ways to reduce a high crime rate? As politicians in South Africa increasingly find reason to argue for harsh mandatory sentences for serious crimes such as police murders and trading in state secrets, we need to delve deeper into the complex answers to these questions.
Setting minimum sentences for crimes we deem so heinous as to require special sentences seems to imply that we don’t trust judges to pass appropriate sentences in spite of having access to all the relevant facts of each crime before them. It also paints our society as one that desires retribution, rather than rehabilitation and restorative justice. Minimum sentences are also premised on the assumption that the threat of long sentences deters criminals from committing crime. But do they? As research into the effect of policy decisions about criminal justice issues remains scant in Africa, we are forced to look at the experience of developed countries to test this assumption.
In 2006 the Italian government passed the ‘Collective Clemency Bill’, which reduced the sentences of prison inmates who had committed a crime before May 2006, with immediate effect. While reducing their current sentence, the Bill also stipulated that if an individual who received clemency committed another crime within 5 years of being released, they would have to serve the rest of the commuted sentence as well a sentence for the new crime. The Bill thus offered a natural experiment to test the assumption that the threat of prison deters people from committing crime.
It was found that the threat of a longer sentence in the future had a mild deterrent effect on most categories of criminals. However, this effect was not evident among those already serving long sentences. What this experiment tells us is that for those who have already served some time behind bars, the threat of future re-incarceration may go some way towards preventing them from re-offending. But, it does not tell us whether the threat of long sentences actually deters criminals who have not spent any time in prison. Nevertheless, the answers may lie in another policy experience.
In the United States, strong public sentiment against crime in the 1970s drove policy towards increasingly harsh sentences. The idea was that long sentences would send a strong message to offenders that their crimes would no be tolerated by society. It also was intended to ensure that if criminals weighed the cost of committing crime against the benefit thereof, they would be deterred from offending. Thirdly it was believed that harsh sentences would have the effect of removing dangerous individuals from society and that fewer dangerous criminals on the streets would mean less crime.
The result of this approach was that 30 years later the US had an enormously high imprisonment rate (much higher than any other comparable countries), which placed an enormous drain on the fiscus. Keeping people in prison is an expensive business. Although the US experienced a significant drop in crime from the 1990s onwards, unfortunately for those who advocate for punitive sentencing, there is almost universal agreement that increasing the number of people going to prison and the length of time they spend there was not the reason for the drop in the crime rate. There is in fact little agreement on what is behind the drop in crime experienced during the same period in a number of developed countries with different sentencing policies.
In fact, a large body of research has found that putting more people in jail for longer has little or no effect on crime levels. And this effect is exacerbated when there is little certainty of being caught and punished. This is theorised to be the case for a number of reasons, one being that criminals simply do not weigh the costs of being caught against the benefits of committing a crime before the commission of a crime. Most people who commit crime do not think that they will be caught and therefore the threat of a long sentence is not a good reason not to commit crime.
In South Africa, where the chance of being caught for having committed a crime is low and the chance of being convicted for the crime committed is even lower, the threat of long sentences is unlikely to be a deterrent. Although minimum sentences have been imposed for a range of serious crimes for some years now, there has been no significant increase in the number of sentenced prisoners for the past six years. What has mostly changed in that time is that the relatively small numbers of offenders who are convicted are simply staying in jail for longer.
So, increasing the number of crimes for which harsh sentences are mandatory may satisfy society’s need for retribution, but it is not going to have the effect of deterring criminals from committing crimes in the first place. While it would be desirable to increase the number of crimes that are detected and convicted, we simply cannot afford the financial or opportunity costs involved in massively increasing the prison population in South Africa. If government’s plans to improve the detection and conviction rate of criminals are realised, it would have the consequence of dramatically increasing the number of prisoners. This comes not only at a high cost to the taxpayer and state, but also to the communities and families of those incarcerated, and it does not take us any closer to making society any safer. Children who have a parent or close relative in prison have been found to be at risk of being emotionally ill-adjusted, doing poorly at school and of having dysfunctional relationships. This also increases the risk that they will also commit crime. In other words, the negative knock-on effect of a policy that seeks to increase incarceration rates and terms has the potential to set us back considerably in the effort to build a healthy society.
Politicians and citizens thus need to decide whether spending more on prisons, and thus less on something else, is in our best interests. I don’t believe it is.
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