Do prisoners have a right to complain about the treatment they receive, or are they just getting what they deserve, asks Susan Erasmus.
"I hereby sentence you to five years' correctional supervision - and, oh yes, did I mention TB, HIV and rape."
No magistrate will ever say this, but that doesn't mean it doesn't happen. And an ex-prisoner has just won a case against the state, making it responsible for contracting tuberculosis while he was behind bars. Health treatment is indeed a constitutional right, the court has found. This has huge implications for us all – not just those behind bars.
But back to prisons and crime, which are such hot topics in SA: with the crime rate in SA being what it is, it's difficult for most South Africans to work up a huge amount of sympathy for your average prisoner and their daily living conditions in overcrowded, dangerous and unhygienic prisons. The increasing violence accompanying crimes such as armed robbery, rape, housebreaking and farm murders make millions of South Africans feel that prisoners deserve the raw deal they get.
Fair enough. What goes round, comes round and all that. People are angered by the thought that prisoners have an easy time – no work, watching TV, lying about. What complicates the situation is that in SA for many a roof over one's head and three meals a day count as a luxury. So what now?
The last thing we want is the ridiculous sort of situation Norway recently found itself in when convicted mass murderer Anders Breivik complained about the view from his cell, that he is not allowed moisturiser, and that his coffee is served cold. The mind boggles. If this guy lived in another country, he would have been lucky just to be shot by a firing squad.
Punishment and rehabilitation
Prisons are indeed supposed to be both places of punishment and rehabilitation, even though those two concepts are actually mutually exclusive. And whether heavy punishments are a deterrent to criminals is debatable. The reasons for committing crime are also multiple and complex.
But let's face it, some people who rape and kill are psychopaths, who are generally thought to be beyond rehabilitation. If set free, they will do the same thing again, so for everyone's sake, behind bars is where they should stay. In fact, whenever a particularly heinous case hits the news, comment boxes explode with calls to reinstate the death penalty. But that is a matter for another column.
We tend to forget that many people in prisons are awaiting trial – sometimes for years. Many of them will never be found guilty of the crimes with which they have been charged. Admittedly, in many of these cases we are not speaking of upstanding citizens, but nevertheless, the law says someone is innocent until proven guilty.
As usual, in the SA context nothing is simple. Our government, many of whom are ex-political prisoners, have often been accused of being soft on crime. It must be easy for that to happen if many of your fellow prisoners are there for ideological reasons. They might have felt differently if they had to share a cell with someone called Wild Dog who had been convicted of slaughtering his grandmother and six other family members with an axe in an argument over a bottle of beer.
Then, our prisons are reportedly no laughing matter. Disease, assault and violent rape abound – and the prison services appear to be powerless to stop any of this. The real punishment is then not incarceration as such, but the conditions that have to be endured as a result of state ineptitude, a lack of staff and insufficient facilities. While many will feel that this should act as a deterrent, it actually has the effect of punishing everyone equally, regardless of their crimes. The drunk driver, kept overnight in cells, is exposed to the same risk as a convicted serial killer of children. Seems a bit harsh, doesn't it?
An eye for an eye
The interesting thing is that many people follow the eye-for-eye principle of meting out justice – that is until they themselves, or someone close to them falls foul of the law.
But even if the guilty deserve punishment and land behind bars because of what they themselves have done, they become the responsibility of the state. If that sounds 'soft' to you, wait until you or a relative find yourselvesin this position.
In the case mentioned in the first paragraph, (the prisoner in question, Dudley Lee, was later acquitted) the following conditions were mentioned as posing a severe health risk:
confinement in close contact for up to 23 hours a day
no effective screening of incoming inmates
the authorities’ failure to isolate infected patients.
The Constitutional Court said Correctional Services 'had a duty to provide adequate healthcare services as part of the constitutional right of all prisoners to conditions that are consistent with human dignity'.
Or should someone who has no respect for the rights of others forfeit their own? It's a tricky question.
While prisons should not be five-star hotels, our current system clearly needs an overhaul. How we treat others often reflects how we feel about ourselves. Societies can indeed be measured by how much humanity they extend to those who have done inhumane things. And that includes not making TB and HIV lasting mementoes of a stay behind bars.
(Susan Erasmus, Health24, January 2013)