History of Dutch penology The origins of the current Dutch criminal code date back to 1811 when the Netherlands was incorporated into the
French Empire. After the Dutch gained independence, the
Napoleonic Code was largely kept but the philosophy underlying these criminal sanctions changed. Specifically, a more humane system replaced
Criminal Justice System of France. Nineteenth century Dutch prisons did not distinguish between adult and juvenile offenders; offenders regularly resided in common quarters. Subsequent to Dutch independence, these practices grew out of favour as they failed to conform to the Dutch conception of punishment. A group of concerned citizens assembled the Dutch Association for the Moral Improvement of Prisoners to combat the frequently harsh prison environment. The organisation's focus was to make prisons more humane by advocating training for offenders, specifically that of a religious and educational nature. These
rehabilitative goals persisted well into the 20th century. The origins of Dutch juvenile penology lay in the extensive welfare system developed in the 16th century. In preindustrial Dutch society, child upbringing was the responsibility of the parents, not the state. This meant that the state did not intervene in issues classified as the responsibility of the family. However, when children moved out of the home and into the factory, the state asserted a greater interest in their well-being. As the state's interest in youths grew, Dutch society implemented an educational and rehabilitative system to nurture that interest. From the late 19th century to early 20th century, a variety of practices were created to stress a rehabilitative model for juveniles. The 1901 Penal Children's Act highlighted this trend by requiring the rehabilitation of delinquent children. This Act also reduced the formality of the hearings, in favour of increased privacy for the juvenile. The state's increased
paternalistic role led to the pursuit of a welfare penological philosophy model. The state was now asserting its right, as
parens patriae, to ensure the proper civilisation of its youth. This new system infringed on the once unfettered access parents had to raise their children. For example, now, parental abuse and maltreatment of children could result in the temporary elimination of their rights. Actions taken by the criminal justice system were charged to be “in the best interest of the child.” In 1967, the
United States Supreme Court case
In re Gault triggered a shift in juvenile criminal justice ideology. The American decision played a large role in intellectually influencing Dutch penology. Gault fundamentally changed the penological landscape because the decision mandated an extension of
due process rights to juveniles. This shift in ideology saw juveniles as a source of rights; and from that point on, the once virulent dividing line between juvenile and adult penology faded. The intellectual groundwork underlying Gault helped catalyze an insurgence of
retributive principles, which influenced the penological debate in the Netherlands. Principles of
proportionality permeated into the system as policies which previously advocated the rehabilitation of juvenile delinquents grew to disfavour. These principles theorised that because juveniles possess
free will, they should therefore be responsible for the choices that they make in life. Accordingly, concerns over the reintegration of offenders into society should be subordinate to ensuring that offenders receive their
"just deserts". Prior to Gault, prosecutors typically dropped charges in cases of petty offences. In fact, historically, three-quarters of all recorded offences in the Netherlands were eventually dismissed. After the United States Supreme Court's 1967 decision however, the Dutch reversed course; prosecutors dramatically decreased the number of routine dismissals.
Sanctions in adult penology Fines and transactions The most often used Dutch sanction is the
fine. The fine's popularity stems from the 1983 Financial Penalties Act (FPA), which stresses the use of the fine over that of incarceration. Dutch courts imposed the fine in 51,280 cases, representing approximately one-third of all sanctions. Section 24 of the FPA stresses that a court should consider an offender's ability to pay and the nature of the crime when deciding on an appropriate amount of the fine. Despite the fine's popularity in the Dutch system, a substantial number of fines go unpaid every year. Similarly, transactions play a large role in the sentencing protocol of the Netherlands. A transaction is a sanction whereby the offender is required to pay a fine or assume certain financial conditions. Transactions are popular in the Netherlands because they provide an alternative sanction to punish offenders without congesting the jails. Specifically, transactions permit an offender to pay a fine to avoid further prosecution. Transactions provide an opportunity for offenders to forgo the stigmatisation that results from the more traditional disposition of cases. Critics however allege that transactions coerce the arrested to forgo the procedural safeguards required by trials. The frequent use of these TBR orders exemplified the rehabilitative culture of the Netherlands following World War II. In 1955 alone, one-third of all incarcerated prisoners were in
mental institutions. Critics lamented their overuse, and argued the Dutch rehabilitative philosophy permitted any offence to be sanctioned by a TBR order. A shift in penological philosophy over the next two decades dramatically decreased the use of TBR orders; by 1970, only one-tenth of all incarcerated prisoners occupied mental institutions.
Incarceration The
Custodial Institutions Agency is responsible for the incarceration of adults in the Netherlands. The Netherlands has a much lower prison population rate than The United States. America's prison occupancy level is at an extreme 103.9%, while the Netherlands prison occupancy is a mere 68.1%. The Netherlands has a relatively low prison population rate compared to that of the U.S., at 59 per 100,000 of the nation's population. To put this number into perspective, the U.S.’s prison population rate is 666 per 100,000. To be specific, the official prison capacity of the Netherlands is at 15,074, which is far less than America’s prison population of 2,145,100. Breaking these numbers down into smaller categories, the World Prison Brief website shows that pre-trial detainees make up 20.3% of the prison population in the Netherlands. According to World Prison Brief, female prisoners make up 5.4% of the prison population. In the U.S., this number is much higher at 9.7%. Juveniles make up only 0.2% of the prison population in the Netherlands. The prison administration of the Netherlands is called the National Agency of Correctional Institutions, or NACI. The Netherlands’ prison population has been steadily declining since 2006. They have so much extra room that they take in prisoners from other countries. In fact, 19.1% of their prisoners are foreigners. In the U.S., this number is only 5.2%. prison complex, seen over the
Amstel river in
Amsterdam Beginning in 1975 however, this trend changed. In 2005, the number of people that were in Dutch prisons on the basis of a criminal law decision was 15,206. Measuring changes in prison capacity alone is an insufficient measure of punitiveness in the Netherlands because these numbers do not accurately represent the incarceration needs of the Dutch. Notably, in the 1970s Dutch prisons operated at full capacity. Incarceration rates were kept artificially low in this era because the Dutch declined to construct the required number of prisons to suit the demands imposed by their criminal justice system. The
Dutch Ministry of Justice report,
Law in Motion, in fact advocated, “[w]hat is at stake is nothing less than the credibility of
constitutional government and its democratic and social values…Our highest policy priority is, of necessity, to combat crime by preventive and repressive means…[.]” Increased incarceration capacity was a direct result of criticism emanating from burgeoning prison waitlists. Approximately 13,000 unsuspended prison sentences were imposed totaling 2,100 detention years in 1970. Yet, in 2000, while the number of unsuspended prison sentences doubled, the number of detention years imposed increased nearly eightfold to 16,000. In the 1990s, capacity was further increased by an additional 3,500 individuals, bringing the total prison capacity to approximately 16,300 persons. Prosecutors’ prior widespread discretion over cases has declined since the enactment of new penological guidelines. As a result, the Dutch have also encountered a substantial increase in the infiltration of illegal immigration. Dutch penal policy historically permitted only one prisoner per cell out of a concern for basic dignity. However, as the Dutch crime rate sextupled in the last decade, concerns for human dignity became subservient to crime control policies. As a result, Dutch penal policy was amended to permit more than one prisoner in a cell in 2003. This change notwithstanding, the Dutch incarceration philosophy stresses the need to minimise the hardships on the prisoner. This philosophy emphasises maximising prisoner contacts with family and the preservation of community ties. Rehabilitative measures, however, such as the procurement of education to prisoners, have been severely curtailed in recent years. Juvenile offenders are primarily subject to two main sanctions: the fine and
detention. Those placed in detention may be held in small-scale juvenile facilities (
Kleinschalige Voorziening Justitiële Jeugd - KVJJ) or juvenile justice facilities (
Rijks Justitiële Jeugdinrichting – JJI). Furthermore, three alternative sanctions exist:
community service,
reparations for damages, and the
training order. Fines are an available alternative, but judges do not typically impose fines on juveniles; they are not considered an appropriate sanction because juveniles rarely end up paying the fines themselves. Only three percent of juvenile incarceration is unconditional. Juvenile detentions are typically conditional and coincide with community service orders. In 1998, seventy percent of all juvenile cases disposed of in court resulted in an alternative sentence (community service, training order, or reparations). Juveniles between the ages of 12 and 16 can be sentenced up to twelve months, whereas individuals between 16 and 18 years old can be sentenced up to 24 months. The Dutch system does not regard these children as criminally responsible for their actions, and rehabilitative programs have been developed to tend to their delinquency. Two notable programs, HALT and STOP, were developed to respond to juvenile delinquency. STOP was developed to confront the onset of delinquency in juveniles under the age of 12, whereas HALT is for older children. These programs combine strains of rehabilitative and
restorative justice to confront the onset of delinquency. Under the programs, police officers who encounter minor juvenile indiscretions can contact the offender's parents, or may propose action to be undertaken by social workers. Sanctions include restorative measures such as apologising, or rehabilitative measures like viewing a film or drawing a picture. Besides programs like HALT and STOP, a number of additional rehabilitative trends have emerged. First, the Netherlands has reintroduced youth police, to specifically deal with juveniles. Additionally, many police departments employ a social worker to counsel on juvenile matters. Second, the Netherlands has seen an upsurge in financial investments in institutional treatment directed towards youth. Treatment is not exclusively focused on in-case intervention; follow-up procedures play a significant role in providing continuous observational treatment.
Delinquency rates Over the last twenty years,
juvenile delinquency rates have been remarkably stable. A similar trend however is not apparent in the level of juvenile violence over the past twenty years. Most citizens, including those most intimately involved in the criminal justice system—specifically, police officers, prosecutors, and judges—believe that violent crime has increased in the Netherlands. For example, neither
victimisation surveys nor hospital records show an increase in violent crime over the last decade. This increase may be because police have become less tolerant of violent acts, and the public has become more vigilant in reporting these offences. Therefore, like the adult system, it is impossible to know whether the increase in the juvenile violent crime rate is largely the result of changes in police and citizen behaviour, or an increase in the frequency of violent crime. As of 2004, data indicates that
property crime offences have stabilised over the last two decades. ==Footnotes==