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6 October 2005

EXPLORING THE RELATIONSHIP OF DEPARTMENT OF CORRECTIONAL SERVICES AND CIVIL SOCIETY IN THE IMPLEMENTATION OF RESTORATIVE JUSTICE

Thank you very much for inviting me to speak to you on this most vital of topics. I do not believe that it is a wild exaggeration to say that our criminal justice system is suffering the burden of unprecedented and unforeseen stress. The conditions in the DCS are the most obvious symptom of this distress: with a prison population of one hundred and fifty nine thousand five hundred and seventy five (159 575), we are over 50 000 over capacity – to express this as a percentage - we are 137% overcrowded. The impact of overcrowding on our ability to deliver our core functions, as articulated by our White Paper, is crippling.

Restoration and Restorative Justice in the White Paper are recognised as the cornerstones in the rehabilitation of offenders. The White Paper seeks to overhaul our corrections department in 20 years by transforming them from “so-called universities of crime into effective rehabilitation centres”. It is perhaps most prudent to comment that in this task – there is much to be done.

This year the Department of Correctional Services has sent me to visit the correctional systems of Canada and Finland. There are many lessons we can learn from them on the issue of penal reform. Contextually and in terms of scale, there are differences, but on the issue of reintegrating offenders, the best systems worldwide have some basic policy principles in common. For me, there are a couple of urgent essentials that require our attention – sentence reform, ensuring that the time spent awaiting trial should be deducted from ultimate sentence and a fairly dramatic shift in expenditure from new infrastructure to an investment in the community corrections and parole segments of the Correctional System.

Johnny Steinberg wrote in Business Day on Monday, 3 October:

“We now have the benefit of 150 years of sociological study of prisons, and we know that programmes designed to ‘correcting offending behaviour’ work only in the most propitious, resource-flush environment, and that even then they are a question of hit and miss.

In fact, we know that only three things are universally true of prisons; that those locked inside them are not committing crimes on the outside; that incarcerating people gives some expression to our need for retribution; and that those who spend a lot of time locked up come out damaged.”

I believe that the White Paper puts us on the right road – but that road is still a dirt track and for us to turn that dirt track into a first-class motorway we are going to have to bring in the engineers, the materials and the people. This of course, brings me to Steinberg’s first point – “a resource-flush environment”. We simply do not have such an environment. Unlike Finland and Canada our population is much larger yet our tax base is much smaller. Whereas Finland spends over R800 per prisoner per day, we spend R123. Our resource-bases are incomparable. My point is simply this; that because we do not have the desirable financial resource flows, we have to do the most doable, in the shortest time possible and we have to ensure that people spend as little time within the system as possible. There is no place here for responding to the emotional call for “locking ‘em up and throw away da key!” It is a price – both financially and in terms of our stated human rights disposition – that we cannot afford to pay.

John Braithwaite, an Australian academic working in the field of Restorative Justice, argues1 that modern criminal justice systems have been “a large failure”.

“It pretends to be equitable, yet one offender may be sentenced to a year in a prison where he will be beaten on reception and then systematically bashed thereafter, raped, even infected with AIDS, while others serve 12 months in comparatively decent premises, especially if they are white-collar criminals.”

All of us here should recognise this situation – even though the author may have been referring to conditions in Australia – we all know that similar situations occur here. Braithwaite argues further, that the failure of the modern criminal justice system and institutions is a result of not shaming criminal behaviour effectively. He describes it thus:

“Stigmatisation is the kind of shaming that creates outcasts; it is disrespectful, humiliating. Stigmatisation means treating criminals as evil people who have done evil acts.”

Treating people as if they are bad will replicate “bad” behaviour. He goes on:

“Re-integrative shaming means disapproving of the evil of the deed while treating the person as essentially good. Re-integrative shaming means strong disapproval of the act but doing so in a way that is respecting of the person. Once we understand this distinction, we can see why putting more police on the street can actually increase crime. More police can increase crime if they are systematically stigmatising in the way they deal with citizens. More police can reduce crime if they are systematically re-integrative in the way they deal with citizens.”

“We can also understand why building more prisons could make the crime problem worse. Having more people in prison does deter some and incapacitates others from committing certain crimes, like bank robberies, because there are no banks inside the prison for them to rob, though there certainly are plenty of vulnerable people to rape and pillage. But because prisons stigmatise, they also make things worse for those who have criminal identities affirmed by imprisonment, those whose stigmatisation leads them to find solace in the society of the similarly outcast, those who are attracted into criminal subcultures, those who treat the prison as an educational institution for learning new skills for the illegitimate labour market. On this account, whether building more prisons reduces or increases the crime rate depends on whether the stigmatising nature of a particular prison system does more to increase crime than its deterrent and incapacitative effects reduce it.”

I have quoted heavily from Mr Braithwaite as he makes some critical points that are particularly pertinent to our context.

They are arguments that must compel us to re-examine our sentencing framework so that we keep offenders incarcerated for the shortest possible time while putting them through programmes and interventions that seek to ensure that they take responsibility for their criminal behaviour, but more importantly seek to restore their human dignity and give them another crack at the real (and hard) world.

To the broader society the main challenge is restoration of cohesion at both the family and community levels of society. The White Paper positions the family as the primary level and community institutions as the secondary level at which correction must necessarily take place. The degree of dysfunction at these levels has to be addressed if the rate of new convictions is to decrease, or, for that matter, if we are to bring down the recidivism rate.

The Department of Correctional Services needs to assist both offenders and victims in the restoration of themselves, families and community life in general. For this to happen in whatever piecemeal fashion, we rely on our many partners. They include faith-based groups, ex-offenders, Parole Boards and specialist non-governmental organisations (NGOs) like Khulisa, Nicro and the President’s Awards Programme.

The department welcomes new community and faith-based organisations and other societal institutions in the hope that its vision of strong and resilient families is achieved sooner rather than later. At DCS good relations with civil society are an absolute pre-requisite for the achievement of our lofty aspirations as they pertain to restorative justice.

As a society we need to understand that long term incarceration will not “cure” criminal behaviour. History has shown that it is quite likely to do the opposite. As a society we need to bring the criminal elements back into the community by helping them take responsibility for their crimes through a process of restoration. You may well ask what that means, so let me quote from Braithwaite again:-

“Restorative justice means restoring victims, a more victim-centred criminal justice system, as well as restoring offenders and restoring community. First, what does restoring victims mean? It means restoring the property loss or the personal injury, repairing the broken window or the broken teeth. It means restoring a sense of security.”

I leave you with these thoughts because I believe that much is possible if we are prepared to confront the realities, cut our sails according to the wind, accept that forgiveness is not divine (us mere mortals are very capable of it) and comprehend that if we do not limit the time spent in prison by individuals to the absolute minimum (risk considerations taken as a given) we will (as a national community) be brought to book long – long – after the serious damage is done.

Issued by: Department of Correctional Services
6 October 2005
Source: Department of Correctional Services (http://www.dcs.gov.za/)