OVERCROWDING – A Solution-oriented Approach

1. OVERCROWDING –A Solution-oriented Approach PRESENTATION TO SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS, NATIONAL COUNCIL OF PROVINCES By the Departments of Correctional Services, Justice and Constitutional Development, NPA, Legal Aid Board, Safety and Security and Social Development 20 October 2004

2. STRUCTURE OF PRESENTATION • The current situation: • Facilities • State of overcrowding • Some causes of overcrowding • Approaches and Initiatives by various departments • IJS effectiveness • SAPS • DOJ & CD and NPA • LAB • DSD • CS • Other aspects 1. Policy Gap on Awaiting Trial Detainees 2. Managing Incarceration of Children as ATD & Sentenced 3. Appropriate sentencing - Management of Levels of Sentenced Inmates 4. Coordination of Facilities Planning & Management 5. Restorative Justice, Community liaison, crime prevention & overcrowding 6. Communication • Way Forward

3. The current situation State of overcrowding It is acknowledged by all role players that our detention facilities (police cells, prison cells and secure care facilities are overcrowded. Everyone is partly to blame: everyone has part of the solution

4. Consequences for inmates Consequences for DCS / police staff / DSD Consequences for DCS / police delivery / DSD Consequences for IJS effectiveness Human rights infringements Overcrowding also Disrupts penal reformation and rehabilitation programs; Creates security risks; and Encourages subversive activities amongst prisoners; The interaction between hardened criminals and less hardened criminals nurtures perceptions that prisons are breeding chambers of criminal discourse. IMPACT OF OVERCROWDING

5. The current situation Focus on Correctional Services State of overcrowding • There are 244 prisons: • 2 are private prisons • 4 are closed for repair • 4 New generation facilities being planned/built (to house 3000 detainees each)

6. The current situation as on 30 June 2004 • Sentenced prisoners: 136 436 • AWT: 49 373 (26, 5%) • Total: 185 809 (Capacity: 114 787) Overcrowding: 71 022 (161,87%)

7. APPROVED ACCOMMODATION VERSUS PRISONER POPULATION PER REGION : 30 June 2004

8. The current situation as on 30 June 2004 CHILDREN IN PRISON (Between 14 – 18) • Sentenced Children: 1 731 (1,2 % of total sent prisoners) • AWT Children: 1 705 (3, 45% of total awt) TOTAL: 3 436 (1,8 % of total number of persons in prison) • and 2059 children awt in secure care facilities

9. GENDER OF PRISON POPULATION 2004

10. TRENDS • Sentenced Prisoners steadily increasing (mostly because of more prisoners serving sentences of 10 years and more and life imprisonment) • Accommodation however increasing only by 20% between 1995 and 2004 against 63% increase in same period of prisoners. • Regarding AWT: AWT numbers are steadily declining • Between 1995 to 1999 the number of unsentenced detainees increased dramatically from 22 021 to 55 523 (152% increase) • Then steadied to a more moderate increase with average of 56 497 over following three years. • Since then a moderate decline – currently nearly on 1998 level

11. 34125 28501 23703 21142 19510 18143 PRISONERS SERVING SENTENCE OF MORE THAN 10 YEARS 45000 40196 40000 35000 30000 25000 20000 15000 10000 1996 1997 1998 1999 2000 2001 2002

12. PRISONERS SERVING LIFE SENTENCES 6000 5505 5000 4542 4000 3708 3228 3121 3042 2951 3000 2000 1000 0 1996 1997 1998 1999 2000 2001 2002

13. Comparative Graph 1995 - 2004

14. Comparison 1995 -2004

15. Awaiting trial detainees2004 • Of the 150 Correctional Centres which have Awaiting Trial detainees 21 are overcrowded.

16. Awaiting trial detainees • The statistics of Correctional Services show that there are on average 50 000 awaiting trial prisoners per month in custody. • If one take the approx number of 200 000 accused before our courts in consideration, the awaiting trial figure of 50 000 is not so alarming. Only 26% of all accused persons before court are therefore awaiting trial in custody.

17. Awaiting trial detainees • It is further evident that the courts are in any event releasing accused on bail, which accused should never have been released. The Regional Courts alone have over a 5-month period issued approximately 4000 warrants for accused who failed to appear before the courts during April to August 2004. • In the District Courts the figure is even more alarming. A total of 68 140 warrants were issued during the same period (this figure does not include the thousands of warrants issued for traffic offences). The cost impact must be enormous for all the stakeholders concerned.

18. POLICE CELLS The South African Police Service has detention cells at most of it's police stations to temporary accommodate the thousands of arrested persons that are taken into police custody on a daily basis. These cells also become overcrowded at times due to the daily arrests made, but is alleviated when awaiting trial prisoners are transferred to the Department of Correctional Services after court appearance.

19. UNDERSTANDING CAUSES OF OVERCROWDING • IJS Incarceration Trend Research Project was established to develop a proactive approach & identify magnitude & significance of various blockages within system, to provide indication of possible solutions to increasing prison numbers. • In process of building model to predict prison numbers, with commitment to build capacity of Depts to continue data on ongoing basis • With above information being provided, participation & additional contributions from all role players, blockages & possible solutions within system will be more easily identified.

20. IJS Incarceration Trend Research Project List of number of key variables is being developed • Number of sentenced & unsentenced prisoners • Crime trends: sentenced & unsentenced prisoners will be categorized by crime ( five categories of crime currently used by department) • Level of overcrowding: prison numbers relative to accommodation capacity • Alternative sentencing: number parolees & probationers under correctional supervision, released to reform schools & converted sentences • Early exit from prison: number of deaths (including both natural & unnatural deaths) • Sentencing policy: proportion of prisoners sentenced in court to less than & up to 2 years, 5 years, 10 years, 20 years, 20 years + & life sentences • Separate categories: information will be provided regarding children under 18 years of age in prison

21. Causes of overcrowding cont. Some of the factors that are contributing to the increase in prison occupancy include: SAPS • Due to the disturbing crime incidents in the country, the SAPS introduced various crime-combating operations in order to destabilize these incidents. Police strategies such as Operation Crackdown, focusing on large-scale arrests As a result an increase in arrests in the various crimes was experienced. The offenders had to be held in police cells/custody and some are being held in Correctional Services facilities depending on the risks and progress in the prosecution. • This operation is ongoing and is likely to increase the number of people arrested and held in prison while awaiting trial. The targets set in the President’s State of the Nation Address, will also have an impact in our prison population in time to come.

22. Causes cont Bail • As a result of a public outcry over a release of accused on bail that have allegedly committed serious offences, the Criminal Procedure Act has been amended (1995, 1997 and 1998) to make it more difficult for some accused to obtain bail: the offences listed in Schedule 5 and 6 of the Criminal Procedure Act, Act 51 of 1977. • Most of the total of 46 434 cases currently outstanding in the Regional and High Courts fall within the ambit of Schedule 5 and 6 Offences.

23. CAUSES OF OVERCROWDING IN CENTRES FOR SENTENCED OFFENDERS • The introduction of minimum sentences for certain categories of crime. • Offenders who are unable to pay their fines. • Unavailability of verifiable addresses. • Non consideration of other alternative sentences by courts for short sentences.

24. CAUSES TO OVERCROWDING OF AWAITING TRIAL DETAINEES • Delays in finalizing cases by courts • Awaiting trial Detainees who cannot afford to pay bail set by the court • Failure by Heads of Correctional Centres to encourage courts to apply diversion methods • Failure by magistrates to apply diversion methods sentencing options

25. IJS INTERVENTIONS

26. IJS Initiatives • IJS fora at National, Provincial and Area levels starting to pay off – There are also monthly meetings with the SAPS, Directorate Public Prosecutions, Magistrates and the High Court President regarding the overcrowding situation. • Alignment & availability of information between various departments are receiving attention with as objective developing & implementing information alignment between departments to enable visibility of information on operational level to inform day-to-day decisions on all levels of management • Sound relations is in place between the courts and role players such as the Law Society and the Legal Aid Board to speed-up applications for representation. • The Legal Aid Board now has specific contract persons for each Correctional centre. • Monitoring of children that accommodates children awaiting trail happens on a monthly basis. This process is vital for planning purposes to provide alternatives for children in detention. The monthly statistics also fulfil the obligations in terms of the Integrated Justice System.

27. DAY TO DAY MANAGEMENT OF ATD LEVELS Implementation of Checklist by Prov & Area is key challenge • Bail Under R1000 back to court –11824 reduced to 9488 in two weeks in an exercise by the NPA – 2336 released • Encouraging greater use of s62f – community corrections for bail conditions • Use of s63a – Heads of Prison application on basis of prison overcrowding – 4346 applications nationally only 1150 successful in 2002/3 • Plea Bargaining, Admission of guilt, payment of fines • Inmate Tracking – pilot in Dbn, JHB ready to begin pilot project

28. SAPS INTERVENTIONS

29. SAPS- Perspective into Overcrowding in Prisons • The South African Police Service is not apathetic towards the problems surrounding overcrowding in our prisons as the consequences of this results in a host of serious problems for all departments concerned and for the country as a whole. • The SAPS recognises that the crime combating operations and law enforcement initiatives in the current high crime environment will continue to result and arrests and place pressure on the criminal justice system as a whole to deal with suspects and convicted offenders. • The need for crime prevention initiatives to reduce the incidence of crime and hence the need for arrests is therefore prioritised in SAPS and the JCPS cluster. Following the May 2004 Cabinet Lekgotla government adopted for all clusters the priority to reduce contact crimes on the prioritised police station areas by 7 to 10 % per annum from 2004 to 2014

30. MEASURES TAKEN BY THE SAPS TO ALLEVIATE PRISON OVERCROWDING The JCPS cluster has through its JOINTS structure mobilise provincial and local counterparts to assist in the development of station level profiles that identify the causes and contributing factors for contact crime per area. These profiles are now being used to develop crime prevention programmes for each of these stations areas with input from and responsibilities assigned to all relevant stakeholders. The JCPS Cluster at national level will receive these costed plans and consider how to mobilise resources to support the programme. The SAPS has taken cognizance of the fact that the awaiting trail prisoners is a contributing factor to the problem encountered in the overcrowding of prisons.

31. In order to address AWT burning issue the following action steps are in the process of being implemented or has already been implemented: • The Detective Service is mandated to investigate all cases reported to the S.A. Police Service. All detectives are sensitized to investigate to arrest perpetrators, and not to just arrest perpetrators in order to investigate reported cases. • The opposing of bail for reasons other than that which will prejudice the course of justice must not be a deciding factor during bail applications. • A module on the granting and opposing of bail has also been developed and is included in the new Detective Learning Program. This will equip law enforcement officers better in the procedures to be followed during the granting of bail, which would obviously contribute in the reduction of awaiting trial prisoners.

32. Investigators have been instructed to ensure that witnesses are timeously summonsed to be at court on the requested dates. This will prevent cases being postponed as a result of non attendance of witnesses at court. • All existing operational police officers, detectives and visible policing members are currently receiving additional training in the taking of proper statements. It is envisaged that this will enable public prosecutors at court to make immediate decisions without having to clarify issues in cases which will prevent delays in the judicial process.

33. A further step in this direction includes the training of Detectives in investigative interviewing techniques in order to elicit maximum information from witnesses and suspects. • The interaction between members of the SAPS and Senior Public Prosecutors ensures that shortcomings are identified and addressed in this training program which ensures that its intended purpose is achieved. • Where suspects are arrested for more serious charges, such as Reckless and Negligent Driving and Drunken Driving, and these suspects have fixed address and workplaces they can be released by means of SAPS 496- warning to appear in court to ensure their appearances in court and to eliminate overcrowding of police cells. • In cases where suspects have been arrested for less serious crimes such as Drinking in Public or Drunkenness these persons can be released by means of a J534-written notice to appear in court to ensure that overcrowding of police cells do not take place.

34. In terms of section 56 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), a peace officer (including a member of the Police Service) may, if he or she believes on reasonable grounds that a magistrate’s court, on convicting an accused of that offence, will not impose a fine exceeding the amount determined by the Minister of Justice and Constitutional Development, such peace officer may, whether or not the accused is in custody, hand a written notice to the accused that calls on the accused to appear at a place and on a date to answer a charge of having committed the offence in question and which contain an endorsement that the accused may admit his or her guilt in respect of the offence and may pay a fine without appearing in court. • The said Minister increased the amount of the fine that may be imposed from R 1 500 to R 2 500 with effect from 14 February 2003. As a result of this, a person who is in custody of the Police Service may be released on a written notice by a member before his or her first appearance in the case where the member has reasonable grounds to believe that a magistrate will not impose a fine exceeding R 2 500 upon the conviction of the accused of that offence. Furthermore, persons who previously had to be detained for offences in respect of which a member had reason to believe that a fine of more than R 1 500 but less than R 2 500, will be imposed, could now be issued with a written notice to appear in court without arresting and detaining them. The increase of the fine has resulted in a decrease in the number of persons in detention awaiting trial.

35. In terms of the Judicial Matters Amendment Act, 2000 (Act No. 62 of 2000) Part II of Schedule 2 of the Criminal Procedure Act, 1977, was amended. In terms of section 59 of the Criminal Procedure Act, 1977, a police official may release a person on bail before his or her first appearance in the lower court if that person is in custody in respect of an offence not mentioned in Part II or Part III of Schedule 2. This has resulted in the release of persons on bail for property offences where the value involved exceeds R 200 but is below R 2 500 and for certain minor offences relating to the possession of dependence producing drugs, which they could not do before the amendment. This amendment has resulted in a further decrease in the number of persons in detention awaiting trial. • In the case of Centre for Child Law v Minister of Home Affairs and Eight Others, the High Court, during September 2004, issued an order that unaccompanied foreign children who are arrested in terms of the Immigration Act, 2002 (Act No. 13 of 2002) may not be dealt with in terms of the Criminal Procedure Act, 1977, but must be dealt with in terms of sections 12 to 14 of the Child Care Act, 1983 (Act No. 74 of 1983). This means that such children will be dealt with, as children in need of care and the Children’s Court will decide how they will be dealt with in accordance with the provisions of the Child Care Act, 1983. Such children will therefore, after their arrest, no longer be detained in police custody or in a correctional facility, but will rather be placed in a place of safety pending the outcome of the proceedings before the Children’s Court. All members of the South African Police Service as well as the relevant staff from the Department of Home Affairs have been instructed to comply with the directives contained in this Court Order.

36. The Probations Officers Amendment Act, 2002 (Act No. 35 of 2002) (hereinafter referred to as “the Act”) came into operation on 7 November 2002 and has as objective to have every child, who has been arrested and who is likely to be detained until his or her first appearance in court, assessed by a probation officer. Section 4B of the Act provides that such a child, who has not been released after the arrest, must, as soon as reasonably possible, but before his or her first appearance in court, be assessed by a probation officer. • In order to enable the probation officer to assess a child in detention, the probation officer must be notified of the fact that a child has been arrested and is likely to remain in custody until his or her first appearance in court. • Accordingly, whenever a child is arrested and he or she is not released on warning, in the care of his or her parents or guardian, or released on bail, the community service centre commander must ensure that the relevant probation officer is, as soon as is reasonably possible, notified of the arrest and detention and when and in which court the child will appear. In terms of a circular issued to all members, the Provincial Commissioner of every province has to ensure that every police station is provided with the relevant particulars of the nearest probation officer within that station area. Every station commissioner must also ensure that probation officers who arrive at a police station to assess a child in detention, is assisted to perform the assessment. • Children that are arrested and must by order of a magistrate be detained for longer than 24 hours can be removed to a secure care facility or place of safety or can be released in the care of their parents/guardian to reduce overcrowding of police cells.

37. The SAPS has developed a new Detective Learning Program (DLP) to equip detectives to carry out their functions in an effective and professional manner. This program is competency based and on completion continues in the workplace where assessments are carried out to determine the practical application of the theoretical contents of the training program. This training program is outcome-based and is presented over a period of twelve weeks.

38. In order to supplement the detective services with additional members, police management has allocated 30% of all new police recruits to the detective service after basic training. The Investigative Interviewing program has now been drafted into the existing basic training curriculum of all police recruits. A further two-week introductory detective course is presented to the additional 30% of police recruits. The South African Police Service Division: Crime Prevention compiled a Code of Practice: Code of Compliance and Due Diligence on Custody Management which will address aspects such as escapes from lawful custody and overcrowding of police cells

39. Another milestone for the SAPS is the implementation of the Automatic Fingerprint Identification System (AFIS) at the Criminal Record Centre which drastically speeds-up results on previous convictions of offenders. Previously the manual system provided 7 769 results over a 20-working day period whereas the AFIS produces 152 686 results over the same period. These results minimizes the time delay in the finalization of cases. • A further directive was issued to all commanders to inspect dockets to and from court in order to ensure that instructions of Public Prosecutors are complied with timeously in order to prevent delays in finalization of cases.

40. One of the inhibiting factors in the management of detained persons in police custody is the lack of online management information. The results of this lack of online information are: • Swapping of identity take place within the holding facilities that allow for the “escape” of detained persons. Lack of crime intelligence • Lack of management capabilities to ensure the timely reporting of children that are being detained for longer than 24 hours. • Prisoner Population Prediction Model system need to be updated manually and is extremely time consuming. • To eliminate these short comings the IJS-Board has approved the implementation of a Detention Management System for the SAPS as part of the IJS system. The development and implementation of this system is on track and it is the objective of the IJS-Program to start with the implementation of this system during the 2006/7 financial year.

41. DEPARTMENT OF SOCIAL DEVELOPMENT

42. Department of Social Development • The transformation of probation service necessitated the amendment of the Probation Services Act (116 of 1991). The Probation Services Amendment Act ( Act 35 of 2002) makes provision for amongst others the following; Certain definitions, assessment, diversion, early intervention, family finder, family group conferencing, home based supervision, reception assessment and referral, pre-trial report, pre-sentence report and restorative justice. These amendments are in line with the proposed Child Justice Bill and make certain that probation officers will be able to fulfill their new functions. DSD has initiated a process to publish the regulations to the Probation Services Act and will consult with relevant role-players. DSD also plans to rewrite the Probation Services Act during 2004/5, to bring it in line with other pieces of legislation viz Child Justice Bill. • There are approximately 600 probation practitioners doing probation workThe Department has sub-contracted with Dept Social Development: University Cape Town, to train all current probation officers by March 2005. Training has started and Mpumalanga and KZN probation officers have already benefited. • The Department has sub-contracted with the Restorative Justice Centre in Pretoria to train probation officers in restorative justice and family group conferencing by March 2005. The project is on track.

43. The Probation Services Amendment Act makes provision for the duties and appointment of assistant probation officers as well as the notion of home-based supervision. • The Department has obtained donor funding for the appointment of assistant probation officers (apo’s) and for replication of home-based supervision programmes in all provinces. This model has proved to very successful and cost effective and the Department proposes it as a viable alternative to children being in detention in prison. • There are 92 apo’s at present and 27 more are to be appointed • Practical training of apo’s is done in each province at a place of safety/secure care where institutionalized children awaiting trial are reassessed by a training team together with probation officers and apo’s of the province. These cases are assessed for possible home-based supervision – the aim being to have fewer children awaiting trial in residential and correctional facilities.

44. The NPA has initiated a process to complete a database of programmes from the NPA provincial perspective. As part of the costing exercise for the implementation of the Child Justice Bill the DSD has identified diversion programmes as a major cost driver and all provinces have made provision for additional programmes. This information will feed into a database and will be captured in a GIS format • This will be used as a reference point for criminal justice practitioners and will serve as a basis for availability of programmes per region and for the registration process of diversion programmes. • The Department hascontracted with NICRO to develop minimum standards for diversion (Donor funding R1,2 m). This will be utilized by national and provincial departments to monitor and fund programmes. • The replication of home-based supervision programmes in every province has gained significant momentum in the recent few months, especially with the appointment of additional APO’s. DSD believes that if this program is implemented in all regions it will alleviate the pressure on DCS and DSD to keep awaiting trail children in detention.

45. Family group conferencing was piloted by the Department with donor funding during 1996/7 and proved to very successful. Therefore it was included in the Child Justice Bill. Family group conferencing is currently defined in Probation Services Act (116 0f 1991) and forms part of duties of probation officers. As part of the implementation of the Child Justice Bill the Department has contracted with the Restorative Justice Centre to train probation officers in restorative justice and family group conferencing. The project has produced excellent results so far. • RECEPTION, ASSESSMENT AND REFERRAL CENTRES/SERVICES The provincial Departments have collectively established 54 RAR centers

46. Secure Care Facilities • At present there are bed capacity for 2131 children; 1981 male and 78 girls are in secure care as at end July 2004 • DSD is planning new secure care facilities with as a total for South Africa 2425 additional new beds at a cost of R 340 million for infrastructure and R187.7 million running costs • Draft minimum standards for residential care facilities were developed. Current draft minimum standards for Secure Care needs to be reviewed. Norms and standards for secure care need to be developed including ratio of child and youth care workers per number of children. Ratios for day and night staff may be different. During a meeting with provincial representatives in August 2003 norms and standard were developed. This include possible secure care centers with no more than 60 beds in a unit but up to four units per campus. Thus a center will be able to house up to 240 children in a center whilst sharing administration facilities and buildings

47. Correctional Services Initiatives to reduce overcrowding

48. INITIATIVES TO REDUCE OVERCROWDING OF SENTENCED OFFENDERS • Conversion of sentences into Correctional Supervision • Assisting offenders to obtain money to pay fines. • Ensuring that support systems are in place for all offenders who are to be released on parole or correctional supervision • Speedy placement of offenders with fines or correctional supervision

49. INITIATIVES TO REDUCE OVERCROWDING OF SENTENCED OFFENDERS • Ensuring that offenders who qualify for parole are placed out as soon as possible. • Increased focus on programmes addressing offending behaviour to prevent re-offending. • Focus on training, education and social development programmes. • Expanding accommodation through the construction of four new correctional centres to accommodate ±12 000 offenders.

50. LEGAL CLAUSES NOT OPTIMALLY USED Department of Correctional Services • Sec 62(ƒ) of the C P Act, (Act no 51 of 1977) makes provision for placement of ATD’S under the supervision of a Correctional Official as a condition of bail. • Sec 63 of the C P Act, (Act no 51 of 1977) makes provision for the accused or prosecutor to apply to the court to reduce the amount of bail that was set by the relevant court.