By Francis Ben Kaifala Esq.

A Convicted Criminal who has served the terms of his sentence and/or paid the required fine or other punishment by law is said to have “paid his debt” to Society.  This statement is aptly put, but the sayer may not necessarily be aware of it – no common parlance on crime and punishment makes more sense to an economist than this commonly used metaphor.

The purpose of punishment is a very controversial issue in society. The argument may range from the need for retribution, deterrence, or the rehabilitation of the offender. Sierra Leone with all its history and age has not yet identified on what side of the argument it actually stands.

In contrast, the just-concluded Oscar Pistorius trial showcased to us the South African Criminal Justice System. I was following the case closely mostly to fathom from it everything that Sierra Leone’s justice system is not, and discern lessons to be learnt. I witnessed a system that is undoubtedly reasonably organised to address the justice demands of the 21st Century on African soil. I found the sentencing proceedings even more useful as Justice Masipa tried to strike the right balance between retribution and rehabilitation.

Unfortunately, Sierra Leone does not have general guidelines on sentencing apart from those haphazardly set out in specific laws or left to the discretion of the judge or magistrate. It is not really clear what purpose punishments serve our society – Are they “incapacitation” so convicted criminals do not recommit the crime? Are they “deterrents” so others will not commit the offence? Are they “restorative” so as to restore the victim to the status quo ante? Are they “retributive” so as to harm the wrongdoer in return? Or rather meant to “rehabilitate” the offender? In order for punishment to be deserved, it has to be justifiable under one or more of these purposes.

While various statutes set prescribed punishments, it is not clear what ‘litmus scale’ was used to determine whether they in fact amount to the payment of the offender’s “debt” to society. One would expect that more modern statutes like the Anti-Corruption Commission Act 2008, the Anti-Money Laundering Act 2012, or the Sexual Offences Act 2012, etc. would have been set with a proper weighing and balancing in mind – but this does not seem to be the case.

To put things into perspective, a punishment which is not commensurate with the offence makes the offence cheap in economic terms. Applying the simple Law of Demand and Supply, when the price (punishment) is cheap for the crime (the commodity), more of the crime will be committed (bought). This simple economic analysis of law shows that a review of our punishment regime is necessary.

In light of the above analysis of crime, one can prepare to buy his crime by simply putting aside the maximum fine that may be imposed by law; or be prepared to accept the punishment and then commit the crime while knowing what price he would have to pay. For example, if the punishment for misappropriating Public Revenue is Le 30 million, why wouldn’t people individually or in conspiracy with others defraud Le 100 Billion and take his chances with the law; particularly when they have a high probability of not being caught because of the poor crime detection and investigation systems in place? Even if they would be caught, they would be prepared to pay the maximum fine which would represent less than 10% of what they would have stolen.

While digesting the above, it should be noted that, contrary to popular understanding, justice is not in actual fact giving each man his due according to what is RIGHT, but rather giving each man his due according to LAW. If therefore, the law is defective, the meaning of justice will rest on what its provisions nonetheless say. If the application of the law results in wrong, it would still be justice; but is it really paying “just debts”? So, for instance, if Oscar Pistorius were released from prison after only ten months, would he be said to have paid his “just debts” to Reeva (his deceased wife from gunshots fired by him) and her family?

Similarly, it is erroneous to think that punishment alone will reduce crime. Reducing unemployment, for instance, is a good complement for reducing crime – the opportunity cost of crime can be easily increased by a policy of the state that reduces unemployment and increases gainful employment. Also, a policy that redistributes wealth away from the wealthy will reduce the benefit of theft to thieves because people can only steal that which they have only if they are kleptomaniacs, and that which one already has cannot be of much benefit (utility) to them anyway.

Oscar Pistorius’ trial demonstrates that punishments in laws that impose a fine on offenders, and as an alternative, provide for imprisonment if the offender does not pay the fine; are just plain discriminatory against the poor because to them there would be no alternative. They cannot pay the fine because they would not have it and one cannot give that which he does not have. It is therefore justice for sale and it is the rich who can buy it. It is simply imposing a uniform custodial sentence on all those who do not have money to pay (the poor) while at the same time, by effect, not applying the same punishment to the rich. Fines therefore cannot always be an effective form of punishment for solvent criminals. Perhaps courts should assess and impose non-pecuniary punishments like public flogging for white collar offenders in addition.

In the light of the above, the Oscar Pistorius Trial in South Africa should have made us realise that our criminal justice system needs to be reformed by not only bringing to modern reality “stone age” statutes like the Offences Against the Persons Act 1861, but the Law Officers’, Police and Prisons Departments must be transformed into modern departments that analyze crime and punishment beyond traditional law viewpoints and make changes that showcase our sense of justice and define our ends of punishment in Sierra Leone.

The persistence of corruption even after the upward revision in 2008 of the prescribed and applicable punishments in the Anti-Corruption Commission Act goes to show that we should go beyond the traditional punishments of fines and incarceration and introduce more radical ones like the “three-and-out rule” whereby a person convicted of three felonies gets a mandatory life imprisonment for the third irrespective of how trivial the third one is. This could be made “two-and-out” for anti-corruption offences. The effect will be that there will be the tendency for the second or third not to be committed as the price to pay will be higher each time. It will also make sure that first time offenders get an opportunity to be reformed and reintroduced into society and contribute to its development.

Understanding the economics of crime is very useful to policy makers when setting punishments. The state can reduce the demand for crime by the “price” of guaranteed imprisonment, a hefty fine or other innovative punishments. Since the traditional forms of punishment are not proving to be very effective, it is time to consider alternatives that will justly reflect a convicted criminal “paying his debt” to society while also reforming him; and perhaps I am not alone in thinking that the “Oscar” goes to Pistorius, and his trial was an eye-opener in this regard, and that Reeva’s debt may not have been justly paid by the finding and sentence of the High Court Judge, Masipa; yet justice was served – for the law says so.

*Note: This Piece was based on the Trial Decision only. The South African Court of Appeals has since overturned the High Court Decision on the grounds that the High Court misapplied the law on culpable homicide and a conviction for murder was substituted. So the Oscar was recalled from Pistorius after all.

Francis Ben Kaifala Esq. is a Senior Partner in the Law Firm Kaifala, Conteh & Co., Top Floor, 81 Pademba Road, Freetown; He holds the joint LLM (Master of Laws) in Law & Economics from the School of Law and the School of Economics and Finance at Queen Mary University of London. Email: fkaifala@kaifalacontehandcosl.com