Submission
to the Parliamentary Portfolio Committee on Correctional Services relating to
parole and the proposed amendments concerning parole in the Correctional
Services Amendment Bill
By
Professor Julia Sloth-Nielsen
Faculty
of Law
University
of the
31
August 2007
1.
The intention of this submission is to focus only on the above matter and to
place the recommendations regarding the proposed amendments concerning parole
in context. The author has some expertise in the field of parole, having been
identified as the lead person concerning community corrections in an ongoing
project to develop indicators for the use of the Department to monitor the
implementation of the Correctional Services. She has also written academic
discussions about the functioning of the parole system, and has discussed
parole at a practical level with officials and non- governmental organizations
at provincial and grass roots levels. Her recent discussions at provincial
workshops gave rise to some of the issues raised, and suggestions made, below.
The author proceeds from the premise that the system of parole is integral to
the sound functioning of the correctional system and as such must be accorded
proper consideration for its optimal functioning by the Portfolio Committee.
2.
The overall functioning of the parole system at the moment leaves much to be
desired, and parole is the subject of ongoing litigation by prisoners due to
various uncertainties regarding its administration. One of the main reasons for
this is the complicated system of calculation of parole dates that has befallen
the system of administration due to, amongst others, the introduction of the
1998 Correctional Services Act on 1 October 2004. A nuanced mathematical
application of the rules is hence required, both by parole boards and by frontline
DCS administrative officials who, at the commencement of sentence, are required
to calculate a parole date for incoming prisoners.
3.
The basic rule is that prisoners must serve one half (1/2) of their sentence
before being considered eligible for parole. However, prisoners serving lengthy
sentences must be considered for parole after the expiry of 25 years, as must
prisoners serving life sentences (albeit that the consideration of ‘lifers’ in
terms of present law must be undertaken by ‘the court’).
4.
However, this rule applies only to prisoners admitted to serve sentence after 1
October 2004. Prisoners were who were already serving sentences as a 1 October
2004 qualify under the previous rules ( in Act 8 of 1959)
to be considered after one half (1/2) of their sentence, minus any credits
received under the old system, but the credits awarded may not lower the
minimum non- parole period to less than one third (1/3) of the sentence. That
prisoners retain any credits earned prior to the coming into force of Act 111
of 1998 on 1 October 2004 is spelt out in the transitional arrangements clause
of the new Act. The basic legal premise is that prisoners must receive the
benefit of the more beneficial system that prevailed when they were admitted to
service their sentences.
5.
Three points emerge from the above: (1) administrative officials and parole
boards are required by law to apply different systems of calculation, depending
on when a prisoner was admitted to serve his or her sentence; (2) the previous
system will remain applicable for a considerable time for prisoners given
lengthy prison sentences before 1 October 2004
and (3) there is ample indication at grassroots level (confirmed by DCS
officials) that the old system is not being applied by many parole boards, who are applying the new system to all
prisoners regardless of when they were admitted to service their sentence. This
lies at the root of some of the litigation that is taking place.
6.
The above basic scheme is further complicated by a directive of 1998, issued by
DCS at a time of serious public concern about crime and early releases. This
directive provided that for certain violent offences, a minimum non-parole
period of three quarters (3/4) should be applied. Although this directive lacks
legal status, and cannot overrule direct legal provisions, there is ample
evidence to support the assertion that the ‘three quarter’ rule was being
applied by some parole boards, as elaborated in the Motsemme
case (Motsemme v Minister of Correctional Services
South African Criminal Law Reports, discussed in CSPRI newsletter no 14 of
November 2005). Recent discussions at provincial level confirmed that this
directive is still being applied with relation to offenders serving
sentences for serious and violent offences, despite clear case law to the
contrary.
7.
A further fractional calculation is introduced by the legal provisions relating
to sentences imposed in terms of Act 105 of 1997, the minimum sentences
legislation. The basic rule is that insofar as a specific sentences has been
imposed in terms of this Act, a prisoner must serve four fifths (4/5) of his or
her sentence as a minimum non- parole period. This Act having come into
operation in May 1998, and having provided for periods of imprisonment ranging
from 5, 10, 15 years (amongst other defined prescribed periods, which also
include life sentences for some offences), it is to be expected that parole
hearing will be on the cards already for some offenders whose sentences were
imposed via Act 105 of 1997.
8.
However, calculation of the above percentage depends on DCS knowing, both at
the time of calculation of the minimum non-parole period (ie
at admission) and at the time of the parole hearing, that a specific sentence
was imposed not just in terms of normal sentencing powers of the court to
impose sentences of imprisonment, but interms of the sencting powers accorded by Act 105 of 1997. It is, in the
experience of the author, entirely unclear whether details of the provisions in
terms of which a specific sentence was imposed (say 10 years) are communicated
to DCS, or recorded on the warrant, and that (if they are), this information is
understood and acted upon administratively by officials who are required to
calculate the date at which the first parole hearing should be convened.
Anecdotally, it seems that this provision is not widely known amongst
admissions personnel who calculate parole dates, and that the practice amongst
the bench/clerks of the court/persons filling out the warrant of detention of
recording that a sentence was imposed in terms of Act 105 of 1997 is at best patchy.
9.
The uneven and
administratively cumbersome parole system desribed
above is further exacerbated by differences in the approaches of different
parole boards, who do not, it seems, adopt uniform approaches. Hence where
co-accused are serving the same sentence but are in different prisons,
instances have been recorded where one is released a considerable time before
the other, due to the different parole board practices. This not only leads to
considerable prisoners dissatisfaction, but is giving rise, allegedly, to
transfer request to benefit from a more lenient parole system, and to
litigation. Anecdotally, I have been given the example of 4 different parole
boards being given a factual situation and asked to calculate the dates of
first parole board appearance – and four different answers were provided (in
one province!). That this is undesirable for the integrity of the parole system
and the administration of correctional centres goes without saying.
10.
The Correctional Services Amendment Act complicates matters even further by
introducing a further new system of parole administration. One response is that
if this were to be enacted, the parole boards would have three (at least)
different systems to administer, depending on whether a prisoner started to
serve his or her sentence before 1 October 2004, after 1 October 2004, or after
the amendment act comes into operation. Even in a sophisticated professional
setting with extensive electronic resources this would be a nightmare – all the
more so in
11.
Even worse, the possibility exists, were the proposed amendment to permit the
Minister to set the minimum non-parole period accepted, that multiple new
parole systems could come into being. The Act is unclear as to whether the
minister would set one or more non parole period. He or she may differentiate
between serious offences and others, or between different types of offences, or
different sentence categories. There is at least nothing on paper to limit
this, and the reference to the capacity of the system to rehabilitate prisoner
could well refer to the proposition that sexual offenders are more difficult to
rehabilitate than other offenders.
12.
More worrying, the amendment also grants to the Minister the power to change
his or her mind from time to time, as the capacity of the system to
rehabilitate prisoners changes. So it is not
inconceivable that a parole board might have 6 or 8 or 10 different sets of
rules and criteria, all linked to the date of admission to service sentences,
and differing Ministerial determinations over time. That the system would implode
under its own mathematical weight seems probable.
13.
Apart from the above, it is worthy of note that a system which permits the
executive, in it’s unfettered discretion, to manipulate sentence lengths by the
regular determination of minimum non - parole dates tramples the separation of
powers doctrine and it likely to be
unconstitutional in its present form. It also contravenes the rule of law, in
that prisoners entering the system under this vague and indeterminate regime, will have no idea as to what the likely sentence
length is to be.
14.
There is no sentence framework to serve as the basis for ministerial decision-
making, nor is one in the offing at this time. The proposal therefore makes
little sense.
15.
Support must be expressed for the amendment which seeks to return the control
over the determination of the release date of ‘lifers’ to Departmental
structures (the National Council on Correctional Services), as the notion that
‘the court’ would so determine is ludicrous, and as judges themselves would
agree. The courts function is to hear trials based on evidence, and there is in
the present provision no indication as to how courts would determine release
prospects in the absence of their normal mode of working, namely by hearing
evidence or at least considering affidavits. The prospect of a second ‘trial’
after 25 years is time wasting, unfair to witnesses and victims, and probably
constitutionally suspect on the basis of the rule that one cannot be ‘tried’
twice for the same offence (the autrefois convit prohibition).
16.
Our Constitution, and the Promotion of administrative Justice Act which was
enacted to give effect to the principle of administrative justice, require a
coherent, well managed, just, uniform and equaitable
system of administration of parole. This does not characterise our parole
system at present, and the real issue is that the system is too complicated due
to the various amendments and changes for the bureaucratic structures that have
to implement it to cope with.
17.
A radical suggestion that I would like to put forward, therefore, is to
simplify and lends some coherence to the present system. I make this proposal on the basis that it is
unrealistic to expect the parole boards, however well trained and briefed, to
apply the multiple overlapping rules and directives described above. I
therefore propose that the one half (1/2) rule be introduced legislative for
ALL prisoners presently serving sentences and those in future to be admitted to
prison. This would require an amendment to the transitional provision in Act
111 of 1998, as well as to provisions concerning prisoners serving minimum
sentences.
18.
I am aware of the fact that such a step might be (would inevitably) be
challenged at the constitutional level by prisoners still expected to benefit
from the ‘one half minus credits but not to less than one third rule’. I would
argue, or support the argument were the department to make this, that the
slightly harsher regime is necessitated by the mess that the parole a system has
unfortunately descended into. There is scope to suggest that the requirements
of administrative efficiency, equity amongst prisoners and their respective
parole boards, and the ongoing and escalating costs of prisoner litigation
constitutes a justifiable limitation on prisoners
right to benefit from the more beneficial parole regime that prevailed at the
time of their incarceration (section 36 of the Constitution).
19.
At minimum, can the Portfolio Committee please ensure the final and permanent
destruction of the 1998 directive which laid down the ¾ rule.
This must be communicated to all parole boards and to all DCS officials who are
tasked with calculating parole dates, and must also be backdated to cover ALL prisoners whose
parole dates have already been wrongly established since 1998, and who are
therefore not being considered by parole boards because they have not yet
served the ¾ period and their files are hence not ‘ripe’ as it were.
20.
I would appreciate the opportunity to brief the Portfolio Committee orally
about the above suggestions.