Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

16
Sentencing Practice, Policy, and Discretion

CONSTANTIJN KELK, LAURENCE KOFFMAN, AND JOS SILVIS


INTRODUCTION

The penal culture, and more specifically the sentencing culture, of the Netherlands is in many respects different from that of England and Wales. The English system has a tradition of deterrent sentencing whereas, in the Netherlands, humanitarian concerns1 combined with a greater awareness of the destructive effects of imprisonment have resulted in differentiated and relatively lenient sentencing.2 In the Netherlands the idea that punishment ought to be a last resort, an ultimum remedium, is still a widely shared notion, despite the remarkable increase in very long prison sentences.

Obviously in close connection with the Dutch perspective on sentencing there has been a tradition of paying attention to the psychological situation of the offender in relation to the crime. Dutch sentencers cannot escape exposure to the psychiatric and behavioural analysis of prosecuted persons, since an elaborate presentation of professional expertise on these matters is a common feature of serious cases dealt with in court. Therefore it is possible to suggest that there might have developed a significant difference in empathy with and insight into the psychology of offenders between Dutch sentencers and their English counterparts.

Differences in tradition and culture influence the way in which discretionary powers in sentencing are exercised. But there are new developments which sometimes escape the traditional approaches: for instance, in drug cases there is a tendency in the Netherlands to give long prison sentences on the merits of the case without much consideration for personal characteristics of the offender.

It is important to have an idea of traditional differences between sentencing in the Netherlands and in England and Wales so as to understand

____________________
1
See, for the humanitarian concerns in Dutch sentencing, J. A. Janse de Jonge, 'Rechtsgelijkheid: nog een lange weg', ( 1983) D en D 544-68; J. A. Janse de Jonge, 'Om de persoon van de dader: opmerkingen over straftoemeting, voorlichting en rechtsgelijkheid ( I)', ( 1987) D en D, 454-67 and ( II) ( 1987) D en D 567-83; J. A. Janse de Jonge, 'Om de persoon van de dader. Over straftheorieen en voorlichting door de reclassering' (diss.), Pompe reeks deel 4, Gouda Quint, Arnhem/Willem Pompe Instituut, Utrecht ( 1991).
2
For a historical perspective of Dutch penal theory on this issue see J. A. Janse de Jonge, Om de persoon van de dader ( Arnhem; Gouda Quint 1991).

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