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Sentencing: theory and practice

Sentencing is becoming increasingly complex for the courts. Legal scholars and criminologists from Leiden document the process of sentencing in the Netherlands. They use this knowledge to advise legislators and those who implement this legislation on how to make sentencing more consistent and effective.

The aim of punishment: theory and practice

When sentencing, judges must do much more than simply consult the criminal code. To begin with, they must bear in mind the modern aim of sentencing – to monitor and treat offenders. Other factors are at play too. For instance, will a certain sentence be effective on a certain offender? Does the public understand why an offender has been given a certain sentence?

Professor of Penal Law and Sentencing Pauline Schuyt researches the emergence of a legal framework of sentencing: what does the law intend with a punishment? She also looks at how this framework is put into practice. For instance, how do judges deal with the aim of a sentence, and how can sentencing be improved? This research enables her to advise parties such as judges, the probation service, prison directors and the Ministry of Justice. She also trains judges so that they can give a good explanation of their decisions.
Schuyt explains what judges have to contend with: ‘Not only has the aim of sentencing changed over the last ten years but also the types of crime. The emergence of cybercrime, for example. The type of offender has changed too. The number of defendants with a low IQ (people with a mild form of intellectual disability) or who suffer from psychological or psychiatric problems is increasing. The sentence that a judge imposes is increasingly a kind of treatment plan comprising a sentence together with conditions such as treatment and supervision.’

Reception in a prison bearing the words
Binnen beginnen om buiten te blijven'
(Start inside to stay outside).

‘But a judge is not a behavioural scientist. This can lead to a sentence with conditions that do not have the desired effect or cannot be implemented on an offender. This creates a false sense of security: the public thinks that an offender is under constant supervision when that is not the case.’
Schuyt’s work includes examining comparable cases to see how judges decide on a sentence. She can incorporate the trends that she discovers in policy advice for the whole chain of criminal justice.

Sentencing: trends and effects

Whereas Pauline Schuyt scrutinises sentencing from the legal perspective, other researchers at Leiden examine the practice: what actually happens and what can we learn? Criminologist Hilde Wermink researches how judges or prosecutors reach verdicts in criminal procedure. She then looks at the effects of sentences on offenders’ lives. She reaches striking conclusions.

For example, she compared the effect of community sentences and prison sentences on recidivism. She studied the data of people in the Netherlands who were given their first community or prison sentence in 1997. Six months after the end of the sentence, the recidivism rate among the offenders with a community sentence was about 50% lower than those with a prison sentence. ‘This conclusion came at a point when there was much discussion about whether to phase out community sentences. This type of research can help people reach well-founded decisions on sentencing. It also answers the question of the effectiveness of certain sentences.’

Further research by Wermink has shown that people from certain ethnic minorities were more likely to receive a prison sentence and that they were often given longer prison sentences for an offence than other offenders. ‘Why exactly this is we don’t yet know,’ says Wermink. ‘But nonetheless it is a striking result. It is important that such findings are communicated to the legislator and those who implement legislation, because empirical research may reveal unconscious processes in criminal procedure. Research can also give greater insight into factors that influence structural decisions on sentencing.’

The facts and figures that Wermink uncovers could tighten up criminal procedure in the Netherlands. Alongside academic publications, she also writes reports for such organisations as the Council for the Judiciary.

Do subliminal processes and factors play a structural role in the verdicts of criminal courts? (the portrayed persons have no relation to the content of the story)

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