Expanded Powers of Regional Magistrates Poor Substitute for Social Measures

Article excerpt

BYLINE: Jean Redpath

At the end of this year, South Africa's 300 or so regional magistrates - the tier of the judiciary sandwiched between high court judges and district magistrates - will be empowered to sentence those convicted before them of certain serious offences to life imprisonment.

This represents a huge change in the sentencing jurisdiction of these magistrates, who 10 years ago had a maximum sentencing jurisdiction of "only" 10 years. The number of people sentenced to heavy sentences is likely to increase dramatically, much as the number of 10-15-year sentences increased 10 years ago - from around 6 000 in 1995 to more than 23 000 in 2005 - when regional magistrates' sentencing jurisdiction was increased from 10 to 15 years.

Heavy sentences are a policy choice of government, based seemingly on a desire to be "doing something" about crime. But do heavy sentences have any impact on crime?

It is well established that the magnitude of a possible penalty - such as "death" or "life" - has no deterrent impact on crime. The likelihood of arrest and conviction, by contrast, does operate as a deterrent - but long sentences have nothing to do with detection rates.

Heavy sentences do, however, have a big impact on incarceration rates - the number of people per 100 000 in prison. Cross-country studies frequently point out widely varying incarceration rates, yet similar crime levels, in countries with similar socio-economic circumstances, illustrating that incarceration rates are predominantly influenced by penal policies, and not by crime rates - and vice versa.

Most within-country studies on incarceration rates and crime assume the two factors are independent of each other - in other words, variation in crime has to do with everything else in society and is not related to the variation in incarceration rates. However, these studies do not consider what would happen if there was no incarceration at all - so can only speak to changes in the incarceration rate.

Thus, it would not be sensible, for example, to advocate for the abolition of imprisonment on the basis that there is no relation between crime and incarceration.

However, those studies that find a relationship between incarceration and crime find it to be mild. Simply put, doubling the average length of sentence (or doubling the number of people in prison) does not halve the crime rate. In the United States in the mid 1980s, it was found that a 10-20% increase in the prison population would reduce key index crimes by just 1%, attributable to the incapacitation effect of longer sentences on serial offenders. …