Minimum sentences are unnecessary – they erode the foundation of the penal system and could cause judges serious moral distress. This is Dr Jan Nijboer’s response to the minimum sentences proposed in the coalition agreement for Rutte’s cabinet. According to University of Groningen criminologist Nijboer, minimum sentences would only apply in areas where judges are already passing heavy sentences. The dissatisfaction with the courts and distrust of judges which emanate from the proposal are inappropriate, he feels.
The coalition agreement requires judges to pass a minimum sentence in cases where an offender commits a second serious violent offence within a decade. This is in cases where the maximum sentence is twelve years or more. Only in very specific circumstances would the judge be allowed to deviate from the minimum sentence. The proposal has not yet been worked out in full detail. The Netherlands, however, is one of the last EU countries to introduce minimum sentences.
Criminologist Nijboer, who specializes in crime and security policy, considers it a worthless proposal. ‘It only applies in exceptional circumstances’, he says. ‘There are not many cases where a second serious violent offence is committed. Violent offences usually occur in relationships and if murder or manslaughter is committed by someone in such circumstances, it hardly ever happens a second time.’ And even if that were the case, Nijboer adds, it would be out of the question for the judge to pass a light sentence. ‘So in the end, nothing will change – the whole discussion is a non-starter.’
The proposal, says Nijboer, will also not help in dealing with repeat offenders, who are an important source of feelings of insecurity. Such offenders usually do not commit serious offences. And those who do? Nijboer: ‘Serious criminals receive hefty sentences already, without the mandatory minimum sentence. The seriously mentally disturbed who commit violent crime as a result receive hospital orders and are incarcerated for long periods. In recent years, the length of a hospital order has increased greatly.’
Nijboer also mentions a more fundamental objection. Minimum sentences mean that judges can no longer make a proper and balanced judgment. ‘A minimum sentence could lead to a serious moral dilemma for judges’, Nijboer holds. ‘A judge who is aware of the relevant facts and circumstances may feel that the sentence is in no way proportionate to the offender’s degree of guilt. Consider, for instance, ending a life at someone’s own request, in cases where the person involved is not a physician, or someone who hasn’t followed proper procedure. In cases like those, judges will go searching for ways to not end up having to pass the mandatory sentence.’
Nijboer refers to research by the Council for the Judiciary into experiences in other countries with minimum sentences. The study shows that judges feel caught between a rock and a hard place and are seeking ways out. Judges hardly have any leeway in sentencing, Nijboer adds. There are national guidelines and overall consistency in the judicial system is already closely monitored.
The coalition proposal put forward for the Rutte cabinet oozes dissatisfaction with judges’ performance and mistrust of the judiciary in general, Nijboer says. But just how widely felt is such mistrust and is it warranted? It cannot be argued that punishment in the Netherlands isn’t harsh enough, according to Nijboer. ‘Judges have already been meting out heavier sentences in recent years – in particular for violent crimes. Crimes like bag-snatching were usually considered simple theft before 1990, but are now considered robbery – known as ‘diefstal met geweld’, or robbery with violence – which has a much heavier punishment. The rise in the number of life sentences being passed also indicates an existing tendency to punish more harshly.’
Despite all this, the calls for heavier punishment are getting louder, Nijboer observes. Feelings of insecurity due to antisocial behaviour and crime have an important role to play. ‘Proponents of minimum sentences claim that citizens, victims and their relatives are ill-served by the legal system. Their need for vengeance isn’t satisfied, nor do they feel more secure. Both these needs would supposedly be addressed by heavier punishments, minimum sentences, higher maximum sentences and fewer community service sentences.’
Political parties feel forced to go along with public opinion and suggest that heavier sentences are the solution, according to Nijboer. There isn’t a single politician who dares to appear too soft in this regard. ‘The whole justification for passing heavier sentences takes second place. I call that “supermarket philosophy” – if someone wants a product, it’ll end up on the supermarket shelves. It’s a fine strategy for a supermarket. Politicians, however, should think twice: making lack of trust in the judiciary a given means they’re actively undermining trust in the rule of law.’
Nijboer feels that both citizens and politicians should find out more about how punishment takes place and why. ‘As soon as people know more about the offence and the perpetrator, they soften their judgement, although there still is a difference between a citizen’s and a judge’s outlook. Research has shown that citizens don’t necessarily want judges to pass harsher sentences. They find it more important that judges are just.’ Introducing minimum sentences also leads to the question of when a sentence is harsh enough, Nijboer concludes. ‘Would that be when the cry for vengeance dies away? Or when we live in a completely secure society?’ Which would be never.
Jan Nijboer is associate professor in Criminology at the Department of Criminal Law and Criminology. He graduated from the University of Groningen with honours as a sociologist specializing in educational sociology. He has worked for the University of Groningen since 1971 as lecturer and researcher. His primary interests are juvenile crime, violent crime and the response in society and the field of criminal law to crime and security issues.
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