Cameron makes strong case against mandatory minimum sentences at Distinguished Law Lecture

There is no evidence that mandatory minimum sentences work, and growing evidence that they are not effective - and yet South Africa stubbornly persists with mandatory minimum sentences - largely because the state wants to persuade a “terrified” public that it is tough on crime.

These were the views of Justice Edwin Cameron of the South African Constitutional Court, when he delivered the University of the Western Cape (UWC) Faculty of Law’s Third Annual Dean’s Distinguished Lecture on Thursday, 19 October 2017.

The lectures, as UWC Law Dean, Professor Bernard Martin, explained, provide a platform for South Africa’s leading legal minds to explore some of the most pressing issues of our time.

Cameron’s lecture, Imprisoning the Nation: Minimum Sentences in South Africa, made a strong case for the scrapping of such minimum sentences for most low-level non-violent crimes – a case not always popular with the South African population, he warned (though he stressed that long sentences for violent crimes are necessary).

Minimum sentences have not only proven ineffective, but have also had pernicious effects on the correctional system, on offenders, and on society in general. “Minimum sentences offer us a false promise,” Cameron said. “They offer us a belief that we are actually doing something about crime.”

The toll has been disastrous, Cameron noted. For one, overcrowding in South African prisons has led to a range of human rights violations, perpetrated in the name of its citizens. It also disproportionately affects black and coloured offenders.

And mandatory minimum sentences fail to meet, he argued, all four rationales used in justification: deterrence (offenders are deterred by the certainty of punishment rather than the severity of the sentence), incapacitation (locking up less dangerous criminals for long periods does not reduce crime), rehabilitation (this is simply not done, in Cameron’s experience visiting South African prisons) and retribution (despite its strong emotional and historic appeal, vengeance has many shortcomings).

Harsh minimum sentencing, Cameron explained, was introduced into South African law in 1997 by the Criminal Law Amendment Act, a “tragic mistake” that has “plagued” the country for the past 20 years. The law was put on the books largely to placate a terrified public as violent crime rose sharply over the country’s transition to democracy.

“Struggling to cement its legitimacy amid an outcry over crime, the state and politicians felt not only compelled to act, but more importantly, to be seen to act,” said Cameron. There are ways to reduce incarcerations in South Africa, but there are “no shortcuts”, “no magic bullets”, noted Cameron.

Firstly, mandatory minimum sentences for low-level non-violence crimes – mostly drug-related – should immediately be scrapped, he urged. He proposed the establishment of a sentencing council that had previously been mooted, to come up with a more efficient system. The mentally ill should be treated rather than imprisoned. And, finally, pre-trial detention practises should be overhauled - and locking up those who cannot afford bail is simply unfair.

We are all terrified of crime, noted Cameron in closing - and often justifiably so. But it must be recognised that minimum sentencing – “pernicious, misguided and futile” – has not reduced the levels of crime in our society.

“Instead, let us hold our leaders accountable,” he urged. “They must guide us - and guide themselves - to the hard work and the systems-building that will result in effective crime-prevention.”