MENTIONING THE UNMENTIONABLE - RACE AS A FACTOR IN SENTENCING

• NCJ Number: 65533
• Journal: South African Journal of Criminal Law and Criminology Volume: 3 Issue: 2 Dated: (1979) Pages: 151-158
• Author(s): B VANNIEKERK
• Date Published: 1979
• Length: 8 pages
• Corporate Author: Butterworth
• Publication Format: Article
• Language: English
• Country: South Africa

Annotation

SEVERAL FACTORS RELATING TO THE APPARENT DISCRIMINATION AGAINST BLACKS REGARDING SENTENCING FOR CRIMES COMMITTED IN SOUTH AFRICA ARE DISCUSSED; DIRECT, INDIRECT, CONSCIOUS, AND SUBCONSCIOUS ASPECTS ARE CONSIDERED.

Abstract

PARADOXICALLY, IN A COUNTRY WHERE COUNTLESS LAWS HAVE BEEN MADE IN AVOWEDLY RACIAL TERMS, THE SUBJECT OF THE OBSTRUSION OF RACIAL FACTORS IN SENTENCING REMAINS UNTOUCHED. THIS OBTRUSION CONTRASTS THE JUDICIAL POLICIES IN OTHER COUNTRIES SUCH AS THE UNITED STATES WHERE CAPITAL PUNISHMENT WAS DECLARED UNCONSTITUTIONAL UNDER CERTAIN CIRCUMSTANCES EXPLICITLY BECAUSE OF THE DISCRIMINATORY FACTOR. THE EXISTENCE OF SOME FORM OF RACIAL DISCRIMINATION IN SENTENCING MAY BE IRRELEVANT WHEN SEEN AGAINST THE WIDESPREAD BELIEF THAT SUCH DISCRIMINATION DOES, IN FACT, EXIST. AS TO WHETHER THERE IS EMPIRICAL EVIDENCE WHICH LEADS TO THE BELIEF OF THE EXISTENCE OF RACIAL DISCRIMINATION, THERE IS SUFFICIENT DATA TO SUPPORT A FINDING OF SENTENCING DISCRIMINATION IN A NUMBER OF AREAS. FOR EXAMPLE, 150 BLACKS HAVE BEEN EXECUTED FOR RAPE SINCE 1911, AS OPPOSED TO THE EXECUTION OF ONLY 3 WHITES. MOREOVER, IN A SOCIETY WHICH EMPHASIZES USE OF MONETARY FINES FOR MANY OFFENSES, DISCRIMINATION IN AN ECONOMIC SENSE IS READILY APPARENT. BLACKS CANNOT AFFORD TO PAY THE FINES AND THEREFORE SERVE TERMS OF IMPRISONMENT. AN OBVIOUS EXAMPLE OF ECONOMIC DISCRIMINATION WHICH IN SOUTH AFRICA WOULD OFTEN RUN ALONG RACIAL LINES RELATES TO THE ABILITY TO BE ADEQUATELY REPRESENTED BY COUNSEL. CULTURAL DISCRIMINATION IS YET ANOTHER ASPECT: THE LAWS ARE BASED ON THE CUSTOMS, VIEWS, AND ATTITUDES OF THE WHITE LAWMAKING BODIES. THE AVERAGE JUDICIAL OFFICER HAS NO CONCEPT OF THE PSYCHOLOGICAL ORIENTATION OF A BLACK CONFRONTED WITH THE CRIMINAL JUSTICE SYSTEM. FINALLY, DISCRIMINATION IS EVEN EVIDENT IN THE TREATMENT OF BLACKS WITH REGARD TO RECEIVING BAIL, PSYCHIATRIC TREATMENT, AND ACCESS TO FUNDS FOR FINES. SUCH RACIAL DISCRIMINATION IS FATAL TO THE REPUTATION OF THE LEGAL SYSTEM AND TO CIVILIZATION IN GENERAL. FOOTNOTES ARE INCLUDED. (LWM)