Foreword In April 2015, when South Africa was 21 years into democracy, I visited Pollsmoor Remand Detention Facility in the Western Cape. It is a justly famous institution, for Nelson Mandela, later first President of democratic South Africa, had been imprisoned there from 1982 to 1988. At the time of my visit, Pollsmoor was operating at around three times its official capacity. Mine was the third inspection visit by a Justice of the South African Constitutional Court in fewer than five years. These earlier inspection reports made clear demands for essential improvements. They did not take place. My team and I were confronted with scenes of human degradation and suffering similar to those my colleagues had earlier witnessed. Worse: the symbolism of imperfect transition, of imperfect realisation of our post-apartheid aspirations was all too anguishingly present. The physical conditions to which several thousand remand prisoners were being subjected were potently distressing. They were causing grave damage to the prisoners’ mental and physical health. The cells were desperately overcrowded, filthy and dark. Standards of sanitation were appalling, as was the smell inside the airless communal cells. There was no hot water and insufficient space for sleeping. Windows were broken and blankets were dirty and lice-infested. The conscientious prison doctor confirmed to us, when we visited the prison’s clinic, that scabies and lice infestations were prevalent. In addition, serious staff shortages created risk of harm to staff and inmates. Many of the prisoners we saw were very sick. Inmates showed us injuries and infections. They had received no treatment. The doctor lacked essential supplies to treat skin infections and other illnesses. The prison pharmacy would often run low on medication for tuberculosis, hypertension and diabetes, as well as penicillin. Prisoners had contracted leptospirosis, a potentially fatal disease carried in the urine of rats. The visit left no doubt that the situation at Pollsmoor and other prisons left the South African government and correctional services vulnerable to constitutional challenge in the courts. And so it transpired. After my report was published in July 2015, a group of civil society organizations that had been calling for change for years formed the Detention Justice Forum. In September, a member of this group, Sonke Gender Justice, instituted proceedings against the government and the head of Pollsmoor. The High Court ordered the respondents to take immediate steps to reduce overcrowding and to improve conditions. These orders began to take effect in the months that followed. As the research presented in this report reveals, there is still some considerable distance to travel before prison overcrowding begins to be adequately addressed in South Africa. Sadly, overcrowded prisons and unhealthy prison environments blight the justice systems of far too many countries. The Institute for Criminal Policy Research (ICPR) has gathered disturbing evidence from across the five continents, including first-hand descriptions by people who have endured the misery of cramped, unsafe, disease-ridden jails. Across almost all the countries represented in ICPR’s study, the same tragedy is playing out – prisons filled to overflowing with people who have been cast out by society, stigmatised because of their mental or physical health problems, their drug or alcohol addiction, their homelessness. And, in the case of remand prisoners, like many of those at Pollsmoor, penalised severely because they are poor – because they cannot afford bail money. The implications – for public health and for the safety of our communities – could not be more serious. So why does this state of affairs persist? In my own country, political choices have played a big part in thrusting us into mass incarceration with all its bleak and unproductive consequences. Mandatory minimum sentencing laws passed in the late 1990s drove up the length of prison sentences. They vastly increased the number of people serving very long custodial terms and particularly life sentences. At the same time, those in power – and I include judges, who also enjoy power, and bear responsibility – have paid too little attention to tackling poverty, social exclusion and health inequality. All of these contribute to the over-criminalisation of marginalised people. Populist ‘law and order’ policies have not only led to quick and easy recourse to imprisonment. They have also created a climate that denigrates the human right to dignity of prisoners. In this climate, we judges have a key role in upholding constitutional rights, including in relation to prison conditions and healthcare. This was made clear in 2011, when the United States Supreme Court ruled that iii