I haven’t been following this case at all, but I happened to be up very late last night when the cable news nets switched LIVE, around 2am out here, to carry the sentencing pronouncement for South Africa’s Oscar Pistorius on the charge of “culpable homicide” (akin to manslaughter in the U.S.), for which he’s been convicted in the 2013 killing of his girlfriend Reeva Steenkamp.
The presiding judge for South Africa’s High Court was Thokozile Masipa, an appointee of Nelson Mandela. She read her complete sentencing ruling aloud from the bench in the courtroom.
I was struck by one section that included several ideas that I don’t recall hearing lately, if ever, in any sentencing for a criminal case of this sort in the U.S…
On the other hand, the latter might break the accused and the result might be just the opposite of what the punishment set out to do, which ultimately is to rehabilitate the accused, and to give him an opportunity, where possible, to become a useful member of society once more.
I have considered all of the evidence placed before me, and all the submissions and arguments by counsel. I have weighed all the relevant factors, the purposes of punishment and all forms of punishment, including restorative justice principles. I have also taken into account the seriousness of the offense which led to the death of the deceased, the personal circumstances of the accused and the interests of society. I have taken the particular circumstances of the accused at the time of the offense into account.
Having regard to the circumstances in the matter, I am of the view that a non-custodial sentence would send a wrong message to the community. On the other hand, a long sentence would not be appropriate either, as it would lack the element of mercy.
A sentence cannot be said to be appropriate without the feelings of mercy for the accused and hope for his reformation… I am mindful of the fact that true mercy has nothing to do with weakness or modeling sympathy for the criminal, but it is an element of justice.
…
The following is what I consider to be a sentence that is fair and just both to society and to the accused.
Pistorius was ultimately given a maximum 5-year prison sentence for his crime of culpable homicide, a lesser charge than either common murder or murder with direct intent, as defined in South African law. He also received a 3-year suspended sentence for related charges, to be served concurrently. The BBC reports that the double-amputee superstar sprinter could be freed from jail in as few as 10 months, but that Steenkamp’s parents were “happy with the sentence and relieved the case was over.”
As I said, I haven’t been following the case closely, and from what I have heard, I don’t find Pistorius’ explanation for what happened to be particularly persuasive or even credible. Moreover, I don’t know anything at all really about the South African justice system, so I don’t have any particularly informed opinion on whether Pistorius’ sentence is either fair or unfair, appropriate or inappropriate in this situation. None of that is the point of this post.
I was just simply struck by the concepts of “mercy”, “rehabilitation”, “reformation” and “restorative justice” being raised at all, as they were by the judge, in a case like this, and her point that punishment for such crimes — at least in South Africa — is not mean to “break the accused”, but to help to rehabilitate them.
Those concepts of crime and punishment now seem about as foreign, absent and miles away from our modern day system of justice in the United States as…well, South Africa.
Plain and simple everything I’ve read shows that he is getting away with cold blooded murder.
I’m sure you will be hearing it a lot with respect to white criminals from now on. It’s a great line and an admirable opinion, if applied consistently.
There is one significant between U.S. criminal law and South Africa.
Because of the constitutional protection against double jeopardy, a prosecutor in the U.S. is barred from challenging an acquittal. Under South African law, while the prosecution cannot appeal the trial court’s factual determinations, it does have the right to appeal a trial judge’s misinterpretation of the law with respect to the facts the court judicially found to be true.
In this case, Judge Masipa, in explaining this sentence, said that she had concluded that Pistorius deliberately fired four shots into a toilet closet knowing that someone was inside.
“Using a lethal weapon,” Judge Masipa observed, “the accused shot not one but four bullets through the door.” While she accepted Pistorius’ questionable claim that he thought an intruder, as opposed to Ms. Steenkamp, was inside — a factual finding that the prosecutor cannot challenge — she also concluded: “The toilet was a small cubicle. An intruder would have had no room to maneuver or to escape, and what is more, the accused knew this fact.”
A number of South African legal experts suggest that Masipa erred because those facts meet that nation’s legal definition of murder.
Additionally, this was not the maximum sentence the law would allow. In fact, while it entailed 5 years, Pistorius will be eligible to have his sentence reduced to house arrest after serving the first ten (10) months of the five year sentence.
In addition to issue of whether Masipa erred in ruling that, under the facts she found to be true, this was not a “murder” within South Africa’s legal definition of the crime, it appears that the prosecutor has the authority to file an appeal seeking a lengthier sentence.
Any appeal must be filed within 14 days.