CSPRI ORAL SUBMISSION TO THE PORTOLIO COMMITTEE ON CORRECTIONAL SERVICES REGARDING THE DRAFT WHITE PAPER ON CORRECTIONAL SERVICES
3 FEBRUARY 2004

Prepared by L Muntingh and J Sloth-Nielsen


The Civil Society Prison Reform Initiative is a joint project of NICRO and the Community Law Centre at the University of the Western Cape with the aim to advance the rights of prisoners by:
- Building civil society capacity to do effective lobbying and advocacy on correctional matters
- Promoting non-custodial sentencing
- Promoting good governance in corrections
- Promoting effective reintegration services.

To this end CSPRI will have completed by the end of this financial year, research projects and held seminars on:
- A policy review of corrections in SA
- The use of litigation in promoting the rights of prisoners
- The role of other oversight structures in promoting prisoners’ rights
- An evaluation of the office of the Inspecting Judge
- An evaluation of the Independent Prison Visitor Scheme as operated by the Office of the Inspecting Judge
- The Optional Protocol to the Convention Against Torture, Cruel, Inhumane and Degrading Treatment or Punishment.

In view of the above, CSPRI would like to acknowledge the efforts and energies of the Department of Correctional Services (DCS) in embarking on the White Paper process. This is an enormously complex task that it has set for itself and we acknowledge the numerous internal consultation processes that the DCS has already completed in producing the draft White Paper.

The process regarding the public consultations that has been followed to date does however leave much to be desired. On 19 December 2003 a Green Paper was announced in the Mail and Guardian and despite numerous efforts to get hold of a copy of said Green Paper, this was not possible. Only on the afternoon of 13 January 2004 did CSPRI obtain an electronic copy of what is now a draft White Paper.

The process and time limits attached to it are of concern to us for two reasons. Firstly, without sufficient time we are not able to consult with our stakeholders, for example our Advisory Board that consists of a number of experts on correctional matters. There are also other stakeholders that need to be consulted such as other NGOs, prisoners and families of prisoners. Secondly, when one is dealing with a document that outlines a vision and strategy for a 20 year period, certain assumptions and alleged facts need to be placed under scrutiny and verified or dispelled. There was simply at this stage no time to do this. It is therefore CSPRI’s opinion that the consultation process we are rushing through now, is substantially impoverished for the reasons listed above. CSPRI is intending to continue consultation with its stakeholders on the Draft White Paper in due course and will submit the results thereof to the Department and this committee.

It should also be noted that the National Council on Correctional Services did not have the opportunity to discuss the Draft White Paper. As this White Paper will constitute a major policy shift, the Correctional Service Act requires that the Council must have the opportunity to do so. Only a draft framework of the Green Paper was presented to the Council. Should this process result in a finalised White Paper without the National Council having had the opportunity to discuss it, the DCS may expose itself to litigation.

It should also be noted that civil society did not have access to a number of documents that apparently informed this Draft White Paper, for example the report entitled "Conceptualising Rehabilitation".

It should also be noted that the Jali Commission has to date not yet produced its final report and it can undoubtedly be assumed that the this report will provide an important input regarding governance in the DCS.

The overall impression that one is left with is that this process is being rushed through so as to deliberately avoid public scrutiny. More importantly, it has the result that the overall aim of democratic participation in government and thorough debate between state and civil society is being undermined.

On a general level, we find the Draft White Paper stylistically a fairly inaccessible and difficult to read and follow. The document is written using language strongly utilising management buzzwords and catch phrases, which serve to obfuscate rather than illuminate the document’s meaning. It is our opinion that if the DCS is serious about this document guiding all thinking and action regarding Correctional Services and also for the community to understand, a plain language version has to be produced that can be used for consultation.

Also on a general level, the Draft White Paper attempts to do a number of things. On the one hand it is a fairly high level visionary style of document, but then it also deals with specific implementation issues and sets time frames for activities to be completed (e.g. implementation of unit management). In other instances it merely raises an issue and states a desirable outcome without thoroughly investigating it (e.g. awaiting trial prisoners). One is sometimes left with the feeling of having read a wish list. It is our view that it is enormously dangerous to accept yet another vision document which is unclear on implementation. Moving from policy to implementation has been the single largest challenge that has faced the general transformation process in the past 10 years, and if we have learned anything, it is that the value of policies is in the level to which they can be demonstrated to be implementable. This requires that policy documents not only articulate what they which to achieve but also provide two further critical pieces of information: how this will be achieved (i.e. through what processes, over what time-frames), and what costs will be incurred, or at least what the major cost drivers are. The draft White Paper fails to do so.

Fundamental to the successful development of a White Paper and its implementation will be a rigorous questioning of the underlying facts and assumptions. For example, South Africa has the fourth highest imprisonment rate in the world. What are the different scenarios over the next 20 years if current trends continue? If minimum sentences legislation remain in place, where is our prison population going to stand at in 2024. What will be the impact of HIV/Aids on the prison population? What are the budgetary implications of this? There are a range of fundamental questions regarding the prisoner population of the future that need to be answered before one can engage on what will happen with people when the are imprisoned. In essence, what are the demographics of the SA prison population now and what are the projections for 2024? In the prison set-up numbers have a direct bearing on the quality of life and the rights of prisoners. A thorough projection is therefore central to our thinking on corrections in South Africa. A policy for the future is being offered, without a clear articulation of what the context and challenges will look like. The White Paper needs to offer a vision of what the future is anticipated to be, and how DCS will respond to this.

The Draft White Paper leaves one with some uncertainty as to whether or not it is based on current research and good practice from elsewhere in the world. The DCS also has it own research programme and undoubtedly some useful information must have been generated over decades that can inform some of the issues, especially in terms of re-offending rates. Underlying this notion, is the question of what is defined as success or failure? If a person never re-offends or commits only a parole violation, or does not offend in five years after release. Although these questions now sound somewhat too detailed and technical, they point towards the base assumptions and foundational thinking underlying a correctional system.

Following from this, the question remains whether the White Paper is uncritically assuming that prisons are effective in reducing crime. Is it therefore assumed that we only need to do imprisonment "better", and then we will see the results? If on the other hand we do ask this question critically and come to the conclusion that the prison is an inescapable part of criminal justice, then we need to ask for who these prisons are intended and what is their purpose in the overall criminal justice system. The fact that we are currently sending people (adults and children) to prison for as short as one month to as long as 25 years, or longer, indicate that we are not sure what their purpose is and what we hope to see they will achieve. Recidivism studies in the UK and USA indicate similar recidivism rates there as to what we estimate it to be in SA. In the UK roughly two thirds of male prisoners are back in prison within 24 months and approximately half of female prisoners. If these are the trends in well-resourced developed countries, we need to critically examine the purpose and effectiveness of imprisonment in a developing country with more pressing development priorities.

[Para 2.9.3] CSPRI acknowledges and congratulates the DCS and other role-players on the achievements to date regarding the reduction of over-crowded conditions in SA prisons. At the same time, we also need to ask the question: what is the long-term strategy for reducing overcrowding. As is acknowledged in the DWP, minimum sentences legislation and the overall lengthening of prison sentences as a result of increases in court jurisdiction will continue to produce a rapidly increasing sentenced prisoner population. Sentencing legislation, policy and practice will therefore remain the single most important variable shaping the conditions in South African prisons. It therefore becomes a basic strategic question of numbers and resources. Do we want to keep the sentenced prisoner population at roughly its current level or are we prepared to incur the enormous costs of allowing it to continue increasing at its current rate and at the same time provide the services and facilities for such a large prisoner population? If we choose the former, then the DCS need to take a far more active role in influencing sentencing in SA courts. It is indeed regrettable that the SA Law Reform Commission Report on Sentencing seems to have fallen by the wayside as this report forms a useful point of departure for strategic sentence reform in SA.

The so-called "New Generation prisons" need to be placed under the spotlight by the Portfolio Committee, as it has been alleged that not all costs are being declared, therefore creating the impression that they are substantially more affordable than the conventional prisons.

The Introduction to Chapter 3 deals with the life history of the SA prisoner but stops short of exploring the concept of social exclusion. There is now considerable evidence of the factors that influence re-offending. Building on criminological and social research, the Social Exclusion Unit has identified nine key factors:

- education;
- employment;
- drug and alcohol misuse;
- mental and physical health;
- attitudes and self-control;
- institutionalisation and life-skills;
- housing;
- financial support and debt; and
- family networks.

The evidence shows that these factors can have a huge impact on the likelihood of a prisoner re-offending. For example, being in employment reduces the risk of re-offending by between a third and a half; having stable accommodation reduces the risk by a fifth. The challenge of turning a convicted offender away from crime is often considerable. Many prisoners have poor skills and little experience of employment, few positive social networks, severe housing problems, and all of this is often severely complicated by drug, alcohol and mental health problems. Many prisoners have experienced a lifetime of social exclusion. Compared with the general population, prisoners are thirteen times as likely to have been in care as a child, thirteen times as likely to be unemployed, ten times as likely to have been a regular truant, two and a half times as likely to have had a family member convicted of a criminal offence, six times as likely to have been a young father, and fifteen times as likely to be HIV positive.

Many prisoners’ basic skills are very poor. 80 per cent have the writing skills, 65 per cent the numeracy skills and 50 per cent the reading skills at or below the level of an 11-year-old child. 60 to 70 per cent of prisoners were using drugs before imprisonment. Over 70 per cent suffer from at least two mental disorders. And 20 per cent of male and 37 per cent of female sentenced prisoners have attempted suicide in the past. The position is often even worse for 18–20-year-olds, whose basic skills, unemployment rate and school exclusion background are all over a third worse than those of older prisoners. Despite high levels of need, many prisoners have effectively been excluded from access to services in the past. It is estimated that around half of prisoners had no GP before they came into custody; prisoners are over twenty times more likely than the general population to have been excluded from school; and one prison drugs project found that although 70 per cent of those entering the prison had a drug misuse problem, 80 per cent of these had never had any contact with drug treatment services. There is a considerable risk that a prison sentence might actually make the factors associated with re-offending worse. For example, a third lose their house while in prison, two-thirds lose their job, over a fifth face increased financial problems and over two-fifths lose contact with their family. There are also real dangers of mental and physical health deteriorating further, of life and thinking skills being eroded, and of prisoners being introduced to drugs. By aggravating the factors associated with re-offending, prison sentences can prove counter-productive as a contribution to crime reduction and public safety.

[Para 3.2] Whilst the role and important influence of the family unit is not denied, this does appear to be an oversimplification. The description above of social exclusion and the nine variables attests to this.

[Para 3.3.8] It is CSPRI’s understanding, based on four studies conducted by NICRO over a four-year period, that reintegration is achieved when an ex-prisoner (offender) has developed the skills, abilities and resources to successfully manage the risks in his or her environment. "Risks" are understood in this sense to mean the factors that will place this person at risk of committing another offence and returning to prison. The notion, as described in 3.3.8, of prisoners leaving prison morally regenerated and a yearning and desire to serve society is perhaps somewhat romantic. This is often too much to ask from our free, law abiding and privileged citizens.

[Para 4.3.1] The vision of the DCS as described in the DWP is a self serving one and does not confirm to the conventional understanding and requirements of a vision statement, which in short states that it must convey a clear message on a future desirable state of affairs. Being the best department of correctional services, means very little to prisoners, crime rates and the general population. This vision statement also begs the question as to how will the department’s performance be measure, what criteria will be used and with whom will the department compare itself in order to know whether it is the best or second best?

[Para 4.4.2] This paragraph errs in stating that the purpose of imprisonment (administered by the correctional system) is not punishment. It is through the deprivation of liberty that the courts intend to extract a proportionate punishment from the offender. Offenders are not sent to prison by the courts for 30 days or 30 years to be rehabilitated and reintegrated; they are sent there to be deprived of their liberty and the rights and luxuries that free citizens enjoy.

[Para 4.4] The objectives of the DCS as formulated in the DWP are a combination of desired results, objectives, activities, and even certain elements of a possible vision. The core activity of any correctional system is to deprive people of their liberty. This can be achieved in a more or less humane manner, more or less efficient, more or less effective, more or less future directed, and more or less creative. To these ends correctional systems develop smart management routines, oversight functions, well-trained staff, and so forth. However, the core activity and concern around which everything rotates on a daily basis is the deprivation of liberty through control systems. We therefore request a re-examination of the departmental objectives against the backdrop of what is stated above.

[Para 5A.2.7.2 and Para 5A.2.7.3] The description of the purpose of community service is incorrect. The purpose is merely that the offender performs work without payment in his or her free time to the benefit of the community. Any therapeutic benefits deriving from this are incidental and serendipitous. Community service does have a potential number of benefits but these are not assured and should not be counted on. Research conducted by NICRO on community service over a ten year period, confirmed that the it is the individual profile of the offender that plays the most significant role in complying with the community service order.

[Para 5 c] The DWP deals very lightly with the issue of safe and humane custody. Based on reliable anecdotal evidence and independent research, we know that assaults and sexual assaults are common in South African prisons. As long as the state cannot ensure the safe custody of all prisoners and does not take all reasonable measures to protect prisoners from each other, it is forsaking its duty and is exposing itself to continuous litigation. There is indeed little sense in talking about rehabilitation, corrections when the DCS leaves one warder in charge of 300 prisoners in a section built for 100 prisoners from 1600 in the afternoon to 0700 the next morning. Some critics may even argue that under these conditions it is premature to even embark on a process such as the DWP when the fundamentals regarding safe custody are not in place.

[Para 10A.2] The DWP describes a "needs based approach" with which CSPRI has in principle no problem. However, a closer reading of the description indicates a strong orientation towards the offences and the offending behaviour as guiding the intervention(s) with the prisoner. Whilst this may in some instances yield insightful information, it is probably in the majority of cases a poor indicator of anything. It is especially the weight attached to the offence for which the person is being sentenced that is of concern to us. Offenders can have a long history of committing offences but is only arrested an sentenced for a minor offences.

[Para 10A.5.2] The distinctions made between corrections, development, care and after-care are somewhat artificial. In practical terms and a common sense understanding the distinctions made will soon fade. More thorough debate is required on these concepts as they are key to our understanding of what the DCS is intending to achieve.

[Para 10A.5.2] Only persons placed under correctional supervision are covered by these services. Is this a typographical error or intentional?

[Para 10A.6] With nearly 50% of all sentence admission being for less than six months, is it realistic to expect a sentence plan for every prisoner? If this is indeed the intention, what would be the DCS’s requirements in terms of social workers, teachers and psychologists?

[Para 10A.6.3] Whilst the notion of a sentence plan is an admirable one, CSPRI would like to have seen a more thorough discussion and more factual information based on research that described the success rate of this approach (even if in other countries) but also what are the risks and resource requirement to implement sentence plans effectively and efficiently.

The descriptions of "corrections" in Para 10A.5.2 and Para 10B.1.2 are differing and confusing.

It is CSPRI’s position that only released prisoners should be involved in poverty alleviation projects. The research that NICRO has conducted in this regard showed tremendous positive results when ex-prisoners were employed in the Working for Water Programme with funding from the Poverty Alleviation Programme.

[Para 14A] The question whether or not DCS will compensate or at least subsidise NGOs rendering services to prisoners, ex-prisoners, their families and parolees needs to be addressed and resolved. There is no doubt that DCS benefits from services rendered by NGOs, CBOs and FBOs but that these organisations are currently subsidising the DCS instead of other way around.

[Para 11B2.1 and 11B.2.2] The attention given to prison gangs in the DWP is scant and merely states that an anti-gang strategy needs to be formulated. The severe impact that prison gangs have on the daily lives of prisoners and the management of prisons, begs the question why has the DCS not since 1994 launched a thorough investigation into prison gangs and at [Para 10A.5.2] Only persons placed under correctional supervision is covered by these services. Is this a typographical error or intentional?least developed some uniform policy and management guidelines. A far more rigorous approach is requested in the DWP. As noted above, it is CSPRI’s view that the DCS in general in this DWP deals with the issue of safe custody in a cursory way and one is not convinced that the DWP is serious about the state’s obligation to ensure the safety and bodily integrity of all prisoners.

[Para 12.3.1] It is noted that the DCS circulated a Youth Policy some 18 months ago. We wish to enquire to the status of that document.

CSPRI wishes to thank the Portfolio Committee for this opportunity and confirms its commitment to prison reform in South Africa and its commitment to a constructive relationship with the Department of Correctional Services.

End