The Blame For the Unmitigated Disaster in the Hani
Murderer Parole Ultimately Lies with Both the Executive and the Judiciary,
which Ignored Sisulu's Warning.
By Paul Ngobeni
The recent Constitutional Court judgment, Walus v
Minister of Justice and Correctional Services and Others (CCT 221/21) [2022]
Z.A.C.C. 39 (21 November 2022) which, ordered that Chris Hani's killer, Janusz
WaluÅ›, be placed on parole is an unmitigated disaster. It is a cruel reminder
of the subservient and second-class citizenship status that black people are
confined to and is an insult to national heroes like Chris Hani, who sacrificed
limbs and, ultimately, lived for the cause of black freedom. Not surprisingly,
the judgment has sparked outrage, grief, and consternation amongst the black
majority. Predictably, this country's apex court and judiciary have been
criticised and lambasted publicly by all and unprecedentedly. Members of the
tripartite alliance have called angry public demonstrations, including the
South African Communist party, the ruling African National Congress, and the
largest trade union federation, the South African Congress of Trade Unions
(C.O.S.A.T.U.). The bitter irony is that all these organisations now so
concerned with injustice and the politics of the judiciary all ganged up to
attack Minister Lindiwe Sisulu for raising the alarm about the ever-declining
quality of our judiciary and its failure to effect substantial and far-reaching
transformation in our jurisprudence. This is the best indicator of the
corrosion of public confidence in the judiciary.
It is equally significant that Mrs. Limpho Hani
blamed Chief Justice Raymond Zondo for the decision, which she rightly called a
miscarriage of justice. Referring to January 2022 remarks by Minister Lindiwe
Sisulu that the judiciary was untransformed and captured, Mrs. Hani said the
judgment had vindicated Sisulu. "Lindiwe Sisulu, I give it to you, my
sister. You are vindicated today. Listen to black people when they tell you about
justice in this country. We are in the shit," she added. Notwithstanding
the current misogynist backlash in the A.N.C. against the election of women in
leadership, visionary leaders and intellectual giants such as Sisulu will
eventually succeed in leading us to a just and equal society fostering
sustainable development, protecting human rights, and promoting the rule of law. Lest we forget, Zondo and
Justice Minister Lamola joined an orchestrated and well-planned systematic
attack on Sisulu for daring to raise issues about the vacuous promises of the
Constitution and the abject failure of our judiciary to transform not just in
demographics but in ideological mindset as well.
In these times, I am compelled to recall the wisdom
of former Chief Justice Conteh of Belize, who once remarked in George
Meerabux v The Attorney General of Belize [2005] U.K.P.C. 12, that
"that society attributes honour, if not veneration, learning if not
wisdom, together with detachment, probity, prestige, and power to the office of
a judge." I must sadly confess that I have searched in vain for the
"learning if not wisdom, together with detachment, probity, etc," in
the judgment of Zondo. It is also significant that the judgment was authored by
Judge Zondo, who was elevated to Chief Justice by President Ramaphosa after the
Judicial Services Commission collectively rejected Zondo's bid for the
position. In the process, Ramaphosa revealed his own misogynist attitude
towards women by rejecting the J.S.C. recommendation to appoint Justice Maya as
the first Chief Justice of South Africa. By outperforming male candidates
during the J.S.C. interviews, Justice Maya demonstrated success in her
leadership role, but she was penalized because she presumably violated unspoken
gender-prescriptive norms existing in the president's head. As a woman who put
herself forward for leadership positions, she faced a backlash that undermined her status. Just like Sisulu, the
devaluation of women leaders is more pronounced when they occupy male-dominated
roles or challenge conventional wisdom.
Throughout his litigation of the Walus case in all
the courts, Minister Lamola abjectly failed to articulate a straightforward,
defensible, and legitimate reason for denying WaluÅ› parole. The pivotal
question is as follows: as a young democracy and developmental state, are we
not entitled to deny parole to those prisoners whose crimes reflect permanent
corruption or deep-rooted incorrigibility because they are violent,
ideologically motivated extremists? The simple answer is absolute – we have
that right.
The United Nation's "Handbook on the
Management of Violent Extremist Prisoners and the Prevention of Radicalization
to Violence in Prisons;" Criminal Justice Handbook Series, United Nations,
New York, 2016 states the
following:
Violent extremism is an affront to the purposes and
principles of the United Nations. It undermines peace and security, human
rights, and sustainable development. No country or region is immune from its
impacts ... Violent extremism is a diverse
phenomenon without a clear definition. It is neither new nor exclusive to any
region, nationality, or system of belief ... Definitions of
"terrorism" and "violent extremism" are the prerogative of
Member States and must be consistent with their obligations under international
law, in particular international human rights law ...
Violent extremism undermines our collective efforts towards maintaining
peace and security, fostering sustainable development, protecting human
rights, promoting the rule of law
and taking humanitarian action.
Plan of Action to Prevent Violent Extremism– Report
of the United Nations
Secretary-General,
A/70/674 (2015), paras. 1, 2, 5, and 12.
The U.N. Handbook further identifies political
ideologues such as nationalist,
neo-Nazi groups, white
supremacists, or hate groups that advocate the use of violence as part of their
philosophy. The stage is then set to view Walus not just as an ordinary
murderer but as a raving, committed rightwing anti-communist ideologue who
remains unrepentant about his racist philosophy. Why did the rudderless Minister
Lamola not argue before the Court that Walus' ideological commitment as an
anti-communist and racist are factors militating strongly against his release
on parole at this stage? As recently as two years ago, WaluÅ› told Polish
Journalist Cezary Lazarewicz that "in 1993, there was a war in South
Africa, and he felt like a soldier... He still believes in the system of racial
segregation and that whites and blacks should live apart." See "Janusz
Walus: Why far-right Polish football fans idolise a murderer in South Africa
."B.B.C. News. 19 September 2020.
It is well known that the Polish immigrant, after
moving to South Africa, became involved in pro-apartheid and far-right
movements, including the white supremacist Afrikaner Resistance Movement of Eugene
Terre'Blanche. His claims of remorse and of being reformed are belied by his
most recent confirmation that he "still believes in the system of racial
segregation and that whites and blacks should live apart." As reported in
the Independent Online, the Communist Party of Poland has warned the S.A.C.P.
about an alleged new plot "to kill communists" - a plot allegedly
orchestrated in Poland, the birthplace of Chris Hani's killer, Walus. S.A.C.P.
senior leaders received an e-mail on Monday, 21 November 2022, alerting them
about the plot and "included were details of a fund-raising function
allegedly organised by a rightwing publishing house in Poland, allegedly to
benefit Walus." See,
https://www.iol.co.za/news/communists-should-be-shot-polish-extremists-raise-funds-to-help-janusz-walus-39466535
Why should these alarming and new material facts
not be presented to the Constitutional Court in a new application to reconsider
its outrageous decision?
Shortly after the Constitutional Court judgment,
journalist Lester Kiewit interviewed Polish political scientist, Rafal
Pankowski, to give insight into the release on parole of Janusz WaluÅ›. Pankowski told him, "69-year-old
Janusz WaluÅ› represents a symbol for rightwing conservatives in his home
country with his face branded on anything from coffee mugs to banners brandished
with slogans such as 'Free Janusz Walus." See
https://www.capetalk.co.za/articles/460239/hani-killer-s-release-sees-neo-nazi-explosion-of-joy-analyst
. Pankowski, the spokesperson for the polish anti-racism group, Never Again
Association, said the judgment had emboldened racists and neo-Nazis around the
world. He said: "I know what it means for the racists and the neo-Nazis in
Poland and internationally. I would say that we can see an explosion of joy on
social media on the part of the far right … those people who see Janusz WaluÅ›
as a role model." Further, Pankowski said: "If he is to return to
Poland, for some on the far right, he is to be welcomed as a hero. He will be
seen as a model for Europe's violent far-right extremist movement."
Contrary to the naïve assumption of the Constitutional Court
judges, it is not unusual for state authorities to deny parole to prisoners
convicted of severe terrorism-related offenses where there is a paucity of
evidence that they have abandoned their extremist ideas. For instance, in
Australia, the New South Wales government states that "community safety is
the State Parole Authority's (S.P.A.) paramount consideration when making
parole decisions. The S.P.A. can: Refuse parole for terrorism-related offenders
unless satisfied that the offender will not engage in, incite or assist others
to engage in terrorist acts or violent extremism." See,
https://www.justice.nsw.gov.au/Pages/Reforms/parole.aspx
In 2020 the United Kingdom introduced emergency
legislation designed to end the automatic early release of terrorist offenders,
as the government took "decisive action to protect the public and keep our
streets safe."
https://www.gov.uk/government/news/end-to-automatic-early-release-of-terrorists These were emergency laws passed in the
wake of the 2019's London Bridge attacks that blocked the automatic early
release of jailed terrorists.
In a similar vein, during the coronavirus pandemic
in 2022, the Indian Ministry of Home Affairs (M.H.A.) ordered that "the release
of prisoners on parole and furlough is not an absolute right and should be
based on well-defined norms of eligibility, and directed states that those
involved in terrorism and other heinous crimes should not be allowed to go out
of jails." https://economictimes.indiatimes.com/news/politics-and-nation/parole-furlough-not-absolute-right-not-to-be-given-to-terrorists-hardened-criminals-mha/articleshow/77933619.cms
It is not illegitimate for a responsible Minister
to use an inmate's terrorist risk profile or behaviour as a basis to defer or
deny parole taking into account all other factors. By this, I mean behaviour
that is neither an offence nor terrorism-related activity but which fosters or
legitimizes terrorist violence on release. Walusz has blatantly informed the
public that the 28 years of his immurement have done nothing to change his
racist views – he "still believes in the system of racial segregation
and that whites and blacks should live apart." Minister Lamola
abjectly failed to articulate to the Court the abecedarian concept that
terrorism offenders such as Walus are welcomed by fellow rightwing extremists
rather than ostracised like paedophiles and that rehabilitating such
ideologically driven terrorism offenders and persuading them against further
terrorist activity is a daunting, if not an impossible task. After all, Walus
is simultaneously enjoying a high cult-hero status because of his brazen act of
murdering the most prominent African leader on the eve of our new democracy.
Gaping Flaws in the Judgment
To appreciate the most alarming flaw in Zondo's
judgment, we must start with his observations about the Bill of Rights. He
claims that "in considering whether or not the applicant should be
released on parole, I have been mindful of the fact that, in assassinating Mr.
Hani, the applicant sought to derail the attainment of democracy in this
country and nearly plunged South Africa into a civil war." Paragraph 96.
But he assiduously avoids mentioning that Walus has publicly declared that he
is still a racist, and his substantially long imprisonment has done nothing to
change his views. Zondo
descends into the pits of reactionary jurisprudence by claiming that the
founders of our constitutional democracy "did not draft a Bill of Rights that
would confer fundamental rights only on those who fought for democracy and not
on those who had supported apartheid or who were opposed to the introduction of
democracy in this country." In short, he commiserates with the murderer
and places a committed racist ideologue who murdered for political reasons on
the same moral plane as the freedom fighters, notwithstanding Walus'
unrepentant stance. Further, Zondo claims that the founders "drafted a
Bill of Rights that conferred fundamental rights on everyone, including those
who had supported apartheid with all their hearts." He waxes lyrical about
the phrase "South Africa belongs to all who live in it, united in our
diversity" and claims that this is evidence that Walus deserves a free
pass to freedom. Incredibly, Zondo anchors his views on the fact that
"most of the sections in our Bill of Rights start with the phrase
"Everyone has a right…" That is because the fundamental rights
conferred in those sections are conferred on everyone." Paragraph 97. But that is all unsustainable
argument – section 36 of the same Constitution has its own limitation clause,
which enables constitutional rights to be partially limited to a specified extent and for specific
limited and democratically justifiable purposes.
Zondo's bizarre interpretation is refuted by the
United Nations document cited in this article which states: "Violent
extremism undermines our collective efforts towards maintaining peace and
security, fostering sustainable
development, protecting human rights,
promoting the rule of law
and taking humanitarian action." It is simply perverse to place
victims of a murderous rampage by political extremists on the same moral plane
as the terrorists who murder for political ideologies. As Sisulu would see it,
a constitution that was designed to further our collective efforts towards
maintaining peace and security, fostering sustainable development, protecting
human rights, promoting the rule of law, and taking humanitarian action is
being reinterpreted to give succour and comfort to racists who are still
hell-bent on bringing back the odious apartheid system of yesteryear. This is
consistent with the collective post-apartheid national psychosis where the
victims of apartheid have been required to make apologies and grant forgiveness
to perpetrators who never asked for such indulgences in the first place.
Zondo lowers both the legal standard and moral tone
of the debate with his claim that the "Minister has considered all the
factors that should be considered in deciding whether to place a prisoner on
parole and concluded that, except for two, they all supported the conclusion
that the Applicant should be released on parole. The two factors that the
Minister considered to count against the Applicant are the ones discussed
above, which I have concluded can no longer stand in the way of the release of
the Applicant. I have reached this conclusion against the background that the
Applicant served more than 25 years of his sentence of life imprisonment,
during which he has kept a clean disciplinary record and has complied with
every requirement that he has been told by the prison authorities he should
comply with in order to improve his prospects of placement on parole. In the
circumstances, I am of the view that it is just and equitable that this Court
should order the Minister to place the Applicant on parole." Since when
has a clean disciplinary record while incarcerated been the dominant or
determinative criterion in parole decisions? Why does Zondo not believe that a
person who is unrepentant and still proudly proclaims his racist views about
black people must be released simply because he spent 25 years in prison?
Before everyone starts baying for Zondo's blood, we
must consider the contributory incompetence of the Minister of Justice as
described in the Court judgment. For starters, Zondo highlights the
contradictions in the compendium of reasons Lamola advances for his decision to
deny Walus parole. Zondo states, "there are two features in respect of
which there is a difference in what he said in his decision document and what
he said in his affidavit that may need to be highlighted. Therefore, I propose
to reflect here what he said in his affidavit. The Minister said:
"13.1 For purposes of my decision dated 16
March 2020, I took into account as positive factors in favour of his placement
on parole:
13.1.1 the commendable behaviour and adjustment of
the Applicant during his incarceration (as attested by his clean disciplinary
record within the correctional centre);
13.1.2
the multidisciplinary programmes completed by the Applicant within the
correctional centre aimed at his rehabilitation;
13.1.3
the availability of support systems to the Applicant and his favourable
employment prospects in the event of his being placed on parole;
13.1.4 the fact that the Applicant is a first
offender;
13.1.5 the remorse on the part of the Applicant for
the crime;
13.1.6 the risk of the Applicant re-offending being
low."
Judgment in paragraph 66.
The articulated reasons are a dead giveaway that
the incompetent Lamola went through the motions, and his incompetent
decision-making is the actual reason why Walus was granted parole. How does any
right-thinking minister endorse the view that the "risk" of Walus'
reoffending was "low" when he had access to newspaper reports in
which Walus confirmed he still believes in apartheid many decades after his
initial immurement? Given that Walus has not, by his own admission, been weaned
off his extremist and racist views, the risk of reoffending and re-establishing
old ties with extremist white racists at home and abroad remains astronomically
high. The only difference now is that he would enjoy elevated cult-hero status.
Zondo is equally remiss in that he conjures up an
excuse without any factual basis to support the decision granting parole to Walus.
He states in paragraph 36 that: "…section 36 of the C.S.A. tells us that
the objective of the implementation of a sentence of imprisonment is to enable
the sentenced prisoner to "lead a socially responsible crime-free life in
the future ."On the face of it, this seems to suggest that, where, on all
the evidence, the risk of a prisoner re-offending, if he or she were released
on parole, is low, the relevant authorities should seriously consider releasing
such a prisoner on parole because the objective of the implementation of a
sentence of imprisonment would have been achieved." That begs the question
again – on what basis does he ground his belief that a self-confessed adherent
of apartheid presents a low risk f reoffending? What makes Zondo think that a
dyed–in–the–wool racist would "lead a socially responsible crime-free life
in the future," as he claims?.
Zondo further goes astray when he deals with the
'rationality" test. It is a well-established general principle of
constitutional law that every exercise of public power should not be arbitrary
but instead should be rational. The Court's obligation when applying this
constitutional principle of rationality to an exercise of public power is to
decide whether the provision or conduct is irrational or arbitrary and, if the
Court so chooses, to declare it unconstitutional and invalid. That being said,
it is crucial to remind ourselves that judges are not elected democratically, and
the judiciary does not have to account for an electorate. Inevitably, the
judges rely on the other organs of the state, which are accountable to the
citizenry, to ensure obedience to and enforcement of the law. As former Deputy
Chief Justice Moseneke remarked in his inaugural Griffiths and Victoria Mxenge
Memorial lecture, "Judges are not elected democratically, and yet the
Constitution itself entrusts them with authority to invalidate any law or
conduct that is unconstitutional. This authority to upset a legislative or
executive choice must be exercised sparingly and in a clear case of
unconstitutionality.
The judicial officer must decide according to the facts and the law and
not according to subjective predilection." Justice Moseneke further
asserted that "courts are bound by the democratic will of the people as
expressed in legislative instruments that are constitutionally compliant
."While he cautions that public opinion should not be a deciding factor in
adjudication, he is aware that court decisions that go against public opinion
place the courts at risk of losing public support. He wisely admonishes that
"above all, a decision on the unconstitutionality of the conduct of
another arm of the state must be clear, strongly motivated, and
accurate on the nature and extent of the impugned unconstitutional conduct." There is
nothing wrong with judges making unpopular decisions in their judgments.
However, they must always be aware that judgments such as the Walus appeal will
eviscerate the institutional legitimacy and the stellar reputation the
Constitutional Court built over more than twenty-five years.
Zondo's reasoning for ordering that Walus be
released on parole was that
"the decision was irrational because there was no connection between the
Minister's exercise of power given to him in this regard and the purpose for
which that power was conferred." He concludes:
[61] In attacking the Minister's
decision as irrational, the Applicant relied on, amongst others, the fact that
the nature and seriousness of the crime of which he was convicted, and the
sentencing remarks of the High Court and the Supreme Court of Appeal will never
change in the future. The Minister did not dispute this, nor could he. The
Applicant then went on to submit in his founding affidavit in the High Court
that, because these two matters on which the Minister relied to justify denying
him parole will never change in the future, the Minister will never release him
on parole, which, therefore, meant that he would serve a full life sentence of
imprisonment.
Zondo proceeded to dismiss or minimize the
Minister's reliance on the seriousness of the crime and the judicial remarks
made at the time of sentencing. He stated:
[72]
It will have been seen from the above what types of remarks of the trial
court and the Supreme Court of Appeal the Minister took into account in
deciding not to place the Applicant on parole. The courts' remarks he took into
account relate to the seriousness of the offence that the Applicant had committed
or the fact that the offence was well-planned and was committed in cold blood.
The question arises: should these the types of remarks made by a trial court at
the time of imposing a sentence that the Department's policy contemplates be
considered? They are not, and the Minister misconceived the policy's remarks.
The sentencing remarks to which the policy document refers can only be remarks
about the minimum period of imprisonment that a convicted person or offender
should serve before he/she can be considered for parole. Sometimes Judges and
Magistrates make remarks to such effect when they impose a sentence of
imprisonment. If the reference to the Court's sentencing remarks referred to in
the Department's policy document is understood to be a reference to such
remarks, the requirement in the policy document makes sense.
Zondo is effectively inventing a new artificial
standard for rationality of a Minister's parole decision. How can Zondo
conceivably claim that remarks by a court recognising the seriousness of an
offense must be discounted by a minister charged with the responsibility to
decide a parole matter? After all, the very nature of the crime and the risk of
recidivism is among the factors that the Minister must include in his
decisional calculus. Zondo
went further to articulate a non-sequitur argument in support of his
unjustifiable decision to release Walus in the following paragraphs:
[81] The question that immediately arises then is
this: if, in the future, the Minister can or will release the Applicant on
parole on the same facts as those which prevailed in 2020 when he denied him
parole, does that mean that he will have reached two different and mutually
exclusive conclusions on the same facts? If he could decide to release the
Applicant on parole on these facts in the future, why is it that he did not
release him in 2020 on the same facts? If the Minister were to release the
Applicant on parole on the same facts in the future, how would he justify his
two conflicting conclusions on the same facts? The Minister did not explain any
of this in his answering affidavit. His failure to explain this renders his
decision to deny the applicant parole inexplicable. If it is inexplicable, it
follows like night follows day that it is irrational. There is no connection
between the exercise by the Minister of his power and the purpose for which the
legislation conferred that power on him. If there is no connection between the
Minister's exercise of the power and the purpose of the power conferred upon
him, his decision is irrational.
[82] One can put what I have said
in the preceding paragraph differently. That is that, if more than 26 years
after the Applicant was sentenced for the crime he committed, it was
appropriate for the Minister not to release the Applicant on parole in 2020
because of the nature of the crime, the seriousness thereof, and the Court's
sentencing remarks, why would it be appropriate for the Minister to release him
one or two or three or five years after that? These three factors are
immutable. They will not change one, two, three, or five years later. The
Minister has not explained this, notwithstanding that it cried out for an
explanation because the Applicant clearly put it in the issue. Therefore, this
Court must vitiate the Minister's decision. If it were not to do so, it would,
in effect, be giving its approval to the proposition that in the future, it
would be appropriate for the Minister to deny the applicant parole even when he
may have served 30 or 35, or even 40 years of imprisonment. That is based on
the nature of the crime, the seriousness thereof, and the trial court's and
Supreme Court of Appeal's sentencing remarks, despite the Applicant having
complied with all other requirements for him to be placed on parole which the
Minister concedes. The Minister's decision is not rationally connected to the
purpose of the power conferred upon him. Therefore, his decision is irrational
and fails to be reviewed and set aside.
The above preceding two paragraphs provide clear
evidence of why it is improper for the judiciary to usurp the powers meant to
be exercised by other branches of government. For starters, in the context of
parole decisions, it is asinine to ask "if, in the future, the Minister
can or will release the applicant on parole on the same facts as those which
prevailed in 2020 when he denied him parole, does that mean that he will have
reached two different and mutually exclusive conclusions on the same
facts?" Releasing Walus at his advanced age, say ten years from today,
would be based on substantially different facts which would be entirely
justifiable and rational. For instance, South African jurisprudence accepts
mero motu that once an offender has reached an advanced age, it may be regarded as a mitigating factor in the sentencing of
such an offender. See, S v Munyai 1993 1 SACR 252 (A); S v Du Toit 1979 3 SA
846 (A); S v Heller 1971 2 SA 29 (A) and S v Zinn(1969 2 SA 537 (A)).
It has been said that the rationale for the
reduction in sentences based on age is compassion. It "evokes a note of
compassion in considering the bleak recompense of imprisonment in the afternoon
of his years" (S v Hellersupra 55C-D). "The significance of old age
as a mitigatory factor, particularly when combined with ill health, is that it
constitutes a basis on which the court, in the exercise of mercy, may impose a
sentence significantly shorter than otherwise might be the case" (S v
Henderson [2005] W.A.S.C.A. 89 par 23.
Concerning deterring the elderly from offending,
there is generally no need for such deterrence as there are very few potential
offenders. The argument is that imprisoning an elderly person for retributive
purposes would be pointless, and the concept of special deterrence would be
irrelevant (Fox and Freiburg par 11.408). The Court cannot overlook the fact
that each year of the sentence represents a substantial portion of the period
of life left to the offender (S v Tasmania supra par 14 with reference to R v
Hunter(1984) 36 SASR 101 103; Kaye v The Queen [2004] WASCA 227 par 21; and
Braham supra 41) and as such mercy is afforded to the elder offender (Braham
supra 51). In Australia, maturity alone may be mitigating depending on the
circumstances of the case, as long as it does not downgrade the seriousness of
the offence to the detriment of the general deterrence objective (S v Braham
(1994) 116 FLR 38 43).
Old age is of special importance when deciding
whether the offender should be imprisoned, as the effects of prison are
especially harsh on the elderly, challenging to adjust to or tolerate.
Imprisonment for the elderly raises specific practical problems for prison
services. Three issues should be noted: it is more costly to incarcerate the
elderly, mainly as a result of increased health problems and victimisation.
The United States courts have also considered old
age even in severe criminal offences where heavy sentences are mandatory. In
United States v. Collins, 122 F.3d at 1307, the defendant was sixty-four (64)
years old and suffered from "heart disease, high blood pressure, ulcers,
arthritis, and prostatitis." In light of Collins's "old age and ill
health," the Court sentenced him to forty months of incarceration for the
distribution of cocaine rather than the one hundred and fifty-one to one
hundred and eighty-eight months recommended by the Sentencing Guidelines. In
United States v. Hildebrand, 152 F.3d 756(8th Cor. 1998) overruled in part by
Whitfield v. United States, 543 U.S. 209 (2005), the Court sentenced the
seventy-year-old defendant to five years of probation with six months in a
community correctional facility for mail fraud and money laundering instead of
the fifty-one to sixty-three months recommended by the Sentencing Guidelines.
The Court did so even though "the Bureau of Prisons could manage Zucker's
[the defendant's] conditions." Id. In United States v. Jackson, 14 F.
Supp.2d 1315, 1316 (N.D. Ga. 1998), the Court sentenced the
seventy-six-year-old defendant to eighteen months of imprisonment for
eighty-three counts of mail fraud rather than the thirty-three to forty-one
months recommended by the Sentencing Guidelines. The defendant suffered from
severe osteoarthritis, a torn rotator cup, and chest pains. 14 F. Supp. 2d at
1318-1319. Even though the Court recognized that the Bureau of Prisons would be
able to accommodate the defendant's needs, 14 F.Supp, 2d 1315 at 1321, it
concluded that the "combination of ailments" justified the departure.
14 F.Supp. 2d 1315 at 1322. In United States v. Barbato, No. 00 CR 1028, 2002,
WL 31556376(S.D.N.Y. 15 November 2002)(unpublished), the eighty-one-year-old
defendant suffered "from a variety of serious medical ailments, including
hypertension, carotid artery disease, and coronary artery disease."
Instead of sentencing the defendant to the twenty-four to thirty months the
Guidelines had recommended for his loan sharking conviction; the Court
sentenced the defendant to twelve months of home confinement and two years of
supervised release. The Court justified the departure because of the
defendant's "medical condition and his advanced age." Id. In United
States v. Willis,322 F. Supp. 2d 76, 78 (D. Mass. 23 June 2004), the Court
sentenced the sixty-nine-year-old defendant to probation with six months of
home detention for income tax offenses. The Court imposed that sentence rather
than the twenty-one to twenty-seven months recommended by the Sentencing
Guidelines, 322 F. Supp. 2d at 78, after, in part, considering the cost of home
detention versus jail:
The issue is one of degree. Willis has an
inordinate number of potentially serious medical conditions. It seems
imminently logical that Willis is at an age where these medical conditions will
invariably worsen. It seems logical that being away from his support structure,
family, and doctors will invariably exacerbate his situation. It seems logical
that if he went to jail for three years between the ages of 69 and 71, he would
emerge in substantially worse shape than he is now if he did not die before
completing his sentence. It seems logical that while the B.O.P. can care for
him, the costs of that care are bound to escalate. Finally, it seems logical
that his conditions at least put him in the zone that enables me to balance the
cost of home detention vs. jail, whether home confinement will be "equally
efficient as and less costly than incarceration," U.S.S.G. § 5H1.1, or
whether "home detention may be as efficient as, and less costly than,
prison" as it is described in U.S.S.G. § 5H1.4
322 F. Supp. 2d at 84-85.
Zondo's reasoning is fallacious in that a Minister
may rationally release Walus on parole ten years from now when he is most
likely to be at an advanced age with attendant illnesses. Releasing an aged and
weaker Walus at that future time does not by any stretch of the imagination
suggest that the Minister would be releasing Walus "on parole on the same
facts as those which prevailed in 2020 when he denied him parole," as
Zondo erroneously suggests. Nor does it indicate that the Minister would have
"reached two different and mutually exclusive conclusions on the same
facts," as Zondo falsely implies.
The morass of the Walus decision illustrates
perhaps a critical thing about the tragedy of our failed leadership in this
society: we have a weakened S.A.C.P. which has abandoned its glorious role as
the intellectual leader of society and is now reduced to staging eye-catching
vacuous demonstrations instead of providing leadership by seriously analyzing
the weaknesses in our judiciary as Sisulu suggested. Equally tragic is
C.O.S.A.T.U., whose leaders were amongst the first attack dogs deployed to
savage Sisulu for innocuously suggesting that the judiciary deserved a critical
re-evaluation in the overall context of our transformation project. As for the
ruling A.N.C., it failed the Hani family, betrayed the hopes and aspirations of
the millions of our people who are convinced that Hani would have made a
massive difference in their social and economic circumstances - he would
undoubtedly have averted the current situation where the poor are falling more
and more into an abyss of despair. As for the judiciary, we must struggle for
the day when our judges will commiserate with the victims of social injustice
instead of being captured by well-resourced and connected N.G.O.s under white
tutelage.