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Dr Nico Kwakman: ‘Mandatory minimum sentences are not effective – the impact is mainly symbolic’

08 February 2012

Despite strong criticism from the Council of State (Raad van State, RvS), the Cabinet is going to continue to introduce mandatory minimum sentences for serious offences. Dr Nico Kwakman, criminal justice expert at the University of Groningen, is critical of the bill, but can also understand the reasoning behind it. ‘The effectiveness of the bill is doubtful, but the symbolic impact is large. The cabinet is sending out a strong signal – and it has every right to do so.’

Nico Kwakman
Nico Kwakman

The Netherlands Bar Association, the Council of State, the Netherlands Association for the Judiciary – they are all advising the cabinet not to introduce the bill. However, the cabinet is ignoring their advice and continuing on with its plans. Criminals who commit a serious crime for the second time within ten years must be given a minimum sentence of at least half of the maximum sentence allocated to that offence, says the Cabinet. The bill has been drawn up under great pressure from the PVV party.

Not effective

Regarding content, the bill raises a lot of question marks, explains Kwakman. Heavy sentences do not reduce the chances of recidivism, academic research has revealed. Nor has it ever been demonstrated that heavy sentences lead to a reduction in the crime figures. Kwakman: ‘It’s very important for a judge to be able to tailor a punishment to the individual offender. That increases the chances of a successful return to society. In the future, judges will have much less room for such “tailoring”.’

Call from the public

The Cabinet says that the new bill is meeting the ‘call from the public’ for heavier sentences. This is despite the fact that international comparisons show that crime in the Netherlands is already heavily punished. Kwakman: ‘Dutch judges are definitely not softies, as is often claimed. Even without politics ordering them to, in the past few years they have become much stricter in reaction to what’s going on in society. This bill, completely unnecessarily, will force them to go even further.’

Symbolic impact

Kwakman does have a certain amount of sympathy for the Cabinet’s reasoning. ‘The effectiveness of the bill is doubtful, but criminal law revolves around more than effectiveness alone. It will also have a significant symbolic impact. The Cabinet is probably mainly interested in the symbolism, in “underlining norms”. The Cabinet is sending out a strong signal – and it has every right to do so as the democratically elected legislator. Anyone who doesn’t agree should vote for a different party the next time.’

French kissing is rape

Judges currently have a lot of freedom when setting sentences but that will be significantly less in the future. Kwakman: ‘A forced French kiss is a graphic example. It officially counts as rape, but judges impose relatively mild sentences for it. Soon judges will be forced to impose half of the maximum punishment for rape on someone who is guilty of a forced French kiss for the second time. Only in extremely exceptional cases can that sentence be changed.’

Taking a stand

And that’s where the dangers of the new bill lurk, thinks Kwakman. Judges who don’t think the mandatory sentence is suitable will look for ways to get around the bill. These could include not assuming so quickly that punishable offences have been proven, interpreting the bill in a very wide way on their own initiative, or by thinking up ‘emergency constructions’. Kwakman: ‘In this way judges will be taking on more and more of the legislative and law formation tasks, and that’s a real shame. The legislature and the judiciary should complement each other. This bill will force people to take a stand and the relationship between legislator and judge will harden.’

Curriculum vitae

Nico Kwakman (1950) is university lecturer in criminal law and criminal procedure law at the Faculty of Law. In 2003 he gained a PhD with a thesis on compensation for damages in law of criminal procedure. Kwakman conducts research into juvenile criminal law/juvenile criminal procedure law; the expert in criminal proceedings; compensation for damages in criminal proceedings; terrorism; the relationship between administrative law and criminal law; the relationship between academia and law, inter alia. He is also the coordinator of the Minor in Crime and Punishment.

Last modified:15 September 2017 3.10 p.m.
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