null Minimum penalties

Minimum penalties

Webcolumn Rechtswetenschappen - by Evert Stamhuis - November 2011

The Dutch criminal justice legislation does not have specific minimum penalties in the Criminal Code, which represents an exception to the systems surrounding us. The criminal courts have a very broad spectrum when they determine the proper punishment, because they are only bound by a maximum, prescribed at the level of the specific crime. The bottom is a general minimum standard of one day in prison or a fine of 3 euro's. On this systematic feature of Dutch law government has proposed changes last spring, on which the debate is still going on. Minimum penalties should be introduced for some crimes in the Code in cases of re-offending. This proposal met with serious opposition from various angles, for example from the Council for the Judiciary (Raad voor de Rechtspraak).

In the present situation the central legislator leaves large room for manoeuvring to the judges in individual cases to determine their sentence according to the circumstances of the case. The range of options between minimum and maximum is even broader because the judges also have almost unlimited freedom to combine the various sanctions and to postpone the execution by way of conditional sentencing. Introducing strict minimum penalties is indeed a rebalancing operation on the initiative of the legislator (central government and national parliament) in order to get a better grip on the sentencing decisions up and down the country.

Of the various arguments in favour and against this proposal I deal with a few. (a) The Dutch system is an exception and it serves the uniformity in the EU to change that. Basically that is nonsensical, because there is no specific obligation right now to unify the sanction systems. (b) It is contrary to a long standing tradition and therefore we should not do it. Not a very strong point either, because justice systems always evolve over time and tradition in itself should not be viewed as inflexible. (c) Judicial independence is under threat now that politicians strive to fortify their grip on sentencing. To this we can say that practice in fellow member states of the EU, that have a system of minimum penalties such as Germany, does not demonstrate a level of judicial independence below an acceptable minimum. However, there is a serious issue here that I will deal with later on. (d) Minimum penalties in the Criminal Code help to increase uniformity among the courts. That much is true, but it unfair to say that the Dutch courts need such discipline from the legislator right now. Discretion is indeed a predictor for inequality, but the Dutch institutions involved in criminal practice already deploy instruments successfully to arrive at equal sentencing where possible. The nationwide sentence recommendation guidelines for prosecutors have a huge impact, especially on standard cases. Sentencing guideline cases issued inside the judiciary also promote equality to a substantial degree. No evidence supports the need for new instruments to attain at a higher level of equal sentencing.

In my view a strong argument against minimum penalties is to resist the overruling idea that the relevant crimes (in case of re-offending) always represent a certain seriousness (expressed in the minimum penalty) and that the legislator can decide on this in general terms. To me that seems wrong in principle. The individual decision makers are the ones who evaluate the individual cases to come to a proper and just disposal, not the legislators. Politicians should not wish to interfere too direct in the courtrooms. That is not their arena, although some may live under the delusion that criminal courts are agencies of central government, which they are not. To counter this argument by saying that the ranges are still broad enough and exceptions are possible, is not very convincing. That would make the introduction of minima all the more symbolic. Moreover, any attempt to push this type of professionals into a direction they do not want, is very likely to fail. From history as well as from comparative research we can learn that there are many ways around a fixed minimum. Courts (and sometimes prosecutors) will use these ways every time they feel forced to dispose of a case in an improper way. The list of options includes: (i) downgrading the charges, (ii) a very broad application of mitigating factors, (iii) such a narrow interpretation of the elements of the relevant crime, that it will be very hard to prosecute successfully and (iv) extensive use of procedural opportunities to avoid or postpone the decision.

On the balance, the introduction of minimum penalties is largely symbolic, overstepping the borders of political power and likely to be unsuccessful in the long run. Better to follow the primary advice of the Council for the Judiciary and withdraw the proposal altogether.

by Evert Stamhuis, Dean and full professor criminal law and procedure OU Netherlands



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