In Prison for Life, a Postponed Death Sentence
Legal Factors’ affect on Life Imprisonment in the Kingdom of the Netherlands
Thijs G. L. Pubben 1263234
TGLPubben@gmail.com MA Thesis
MA Crisis and Security Management
Coordinator: Dr. J. Matthys Supervisor: Dr. Marieke C. A. Liem m.c.a.liem@fgga.leidenuniv.nl Second Reader: Dr. Pauline G. M. Aarten p.g.m.aarten@fgga.leidenuniv.nl June 9, 2019 Word count: 16,401
Table of Contents
Introduction p. 3
Theoretical Framework
Empirical Background p. 10
Theoretical Background p. 13
Criminal Code and Other Legislation p. 17
Sanctions and non-punitive measures p. 18
Crimes and life imprisonment p. 20
Homicide and aggravated manslaughter p. 20
Terbeschikkingstelling p. 21
Clemency and conditional release p. 22
Methodology p. 25 Research Design p. 25 Data Gathering p. 25 Data Analyses p. 27 Quantitative analysis p. 27 Qualitative analysis p. 28
Analysis and Results
Quantitative p. 28
Qualitative p. 35
Dutch Caribbean case p. 35
Dutch case p. 37
Dutch Caribbean case vs Dutch case p. 38
Discussion p. 39
Conclusion p. 43
References p. 45
Appendix A1. Coding Manual Lifers Kingdom of the Netherlands p. 53
In Prison for Life, a Postponed Death Sentence
Legal Factors’ affect on Life Imprisonment in the Kingdom of the Netherlands
‘A life sentence means that, in effect, you’re dead. It’s just another form of a death sentence. Instead of having the gall to do it in one fell swoop, you die one day at a time.’ (Penal Reform International, Van Zyl & Appleton, 2018, p.7).
‘Homicide is generally considered the most serious of all crimes, with obviously the most serious consequences for the victim.’ (Smit, De Jong & Bijleveld, 2012, p.5).
Introduction
Internationally, judicial systems retain a variety of penalties to impose on offenders of misdemeanors and crimes, ranging from petty theft and minor traffic-related offenses up to the extreme end of the spectrum consisting of assault, rape, homicide, and crime with a terrorist intent (Campbell, 2012). Most commonly countries’ criminal code contains a distinction between punishments, in the Netherlands there is a distinction between principal -, and supplementary punishment, and so-called non-punitive measures (Tak, 2008; Van Wingerden, 2011). Here, existing types of principal punishment are imprisonment, detention, community service and a fine. Supplementary punishment which may be imposed are deprivation of specific rights (e.g. exert specific administrative positions, serving in the armed forces), forfeiture and publication of the court’s decision (Beaujean & Van der Leij, 2018; Tak, 2008). Lastly, possible non-punitive measures are withdrawal from circulation, confiscation of illegally obtained profits, obligation to pay compensation, committal to a psychiatric hospital, entrustment order in- or excluding compulsory treatment ([TBS], Terbeschikkingstelling), and placement into an institution for persistent offenders (Tak, 2008; Van Wingerden & Nieuwbeerta, 2006). Taking the severity of the committed offense into consideration, amongst other factors, judges have the authority and discretion to mete out single punishments or measures, or a combination hereof (Tak, 2008; Van Wingerden & Nieuwbeerta, 2010). Notwithstanding judge’s level of discretion, they are bound to laws from the criminal code which generally state what type of punishment is allowed to impose and specifically what the minimum and maximum of these punishments are regarding specific offenses (Tak, 2008; Van Wingerden & Nieuwbeerta, 2010). This research’ focus is on the Kingdom of the Netherlands, but before explicating its specific reasons and elaborating hereon, a rather broad and international outline is given of maximum prison sentences and the most common crimes for which these sentences are meted out.
Maximum prison sentence as punishment is particularly worthwhile to look into, because it implies drastic (possible inhuman) consequences for the offender as well as society, and internationally there are significant differences between what the maximum prison sentence entails (Casier & De Hert, 2012; Penal Reform International et al., 2018). After worldwide abolition or restriction of the death penalty, the severest sanction to impose on the extremest crimes became imprisonment for life (De Bont & Meijer, 2013; 2013a; Fitz-Gibbon, 2012; Penal Reform International et al., 2018; Van Zyl Smit, 2012). In the most recent study of Van Zyl Smit and Appleton (2019) on life imprisonment worldwide, it is stated that 183 out of 216 countries retain the possibility to impose life imprisonment and the remaining 33 do not. Countries that do not impose life imprisonment, such as Portugal, Spain, Norway, Brazil, and Colombia, do impose long-term prison sentences (Casier & De Hert, 2012; De Bont & Meijer, 2013; United Nations, 1994; Van Zyl Smit & Appleton, 2019). Generally, under designated circumstances, they do retain the possibility to imprison an offender for a longer period of time than the statutory maximum sentence, or even for life (Appleton & Grøver, 2007). A much discussed example hereof is Anders Breivik in Norway. He received the maximum sentence of 21 years imprisonment for murdering 77 people in 2011. After ten years, the period after which the committed crime(s) is (are) expected to be retributed in Norway, it is questioned whether or not the offender poses a threat for society. If that question can be answered affirmative the offender stays incarcerated, and in this case the recidivism risk is again questioned after 21 years. If the offender is still deemed to pose a risk for society, his dangerousness is questioned every five years with the possibility of endless repetition, theoretically meaning it can last a lifetime (Meijer & Claessen, 2013; Van Zyl Smit, 2013).
As mentioned, life imprisonment as sanction in the criminal code of the 183 countries that do impose life sentences do not all entail the exact same (Van Zyl Smit & Appleton, 2019). Despite more than two different types of life imprisonment exist internationally, for the purpose of this research a distinction is made between only two. The main difference of these types of life imprisonment is the (ir-)reducibility of the sentence. A first, and without doubt the severest type of imprisonment for life is life imprisonment without the possibility of parole. This means no possibility of early release when an offender is sentenced to life (Nellis, 2013). One of the few limited options of a prospect of release for this type of life imprisonment is by means of pardon, however in many countries not consistently granted (Appleton & Grøver, 2007; Meijer & Claessen, 2013; Van Hattum, 2005). Secondly, prisoners sentenced to life with a possibility of parole are considered for release after a certain/minimum period of incarceration (United Nations, 1994; Van Hattum, 2006; Van Zyl Smit & Appleton, 2019). This is after compulsory long-term imprisonment
(e.g. In Poland after serving 25 years) or the possibility of conditional release after a relatively shorter period of time (e.g. After serving 10 years in Belgium) (Van Hattum, 2011; Van Zyl Smit, 2013). Provided that the purpose of the imposed sentence is served and offenders are not considered to be a threat for society anymore (Meijer & Claessen, 2013; United Nations, 1994). The interpretation of these conditions for release may vary greatly across countries as it is a subjective matter and subject to national law. Hence, even though a life sentence may de jure imply incarceration for life, this does de facto not necessarily have to be reality and vice versa (Penal Reform International, 2018).
As a consequence of different legal definitions and execution of life imprisonment, there are significant international and regional differences in the amount of offenders sentenced to prison for life (Penal Reform International et al., 2018; United Nations, 1994; Van Zyl Smit & Appleton, 2019). Regardless of these international and regional differences, it is notable that usage of life sentences worldwide increased dramatically (Appleton & Grøver, 2007; Campbell, 2012; Ganpat & Liem, 2012; Grant, 2001; Meijer & Claessen, 2013), practically resulting in doubling the number of lifers (offenders sentenced to life imprisonment) since the turn of the century. A rough estimate, since data gathering on this topic is a rather difficult task, is that currently about 500,000 persons are serving a life sentence globally (Penal Reform International et al., 2018; Van Zyl Smit & Appleton, 2019). The numbers and rates of offenders serving life imprisonment per country are shockingly diverse. To give an indication, of the approximately half million lifers, the United States takes the lead with almost 162,000 lifers, followed by India with almost 72,000, South Africa with approximately 13,000, and the United Kingdom with nearly 9,000 (Van Zyl Smit & Appleton; 2019). Among the significantly lower amounts of lifers are, France with 466 lifers, Germany with 1,953, the Netherlands with 32, and only 4 for Aruba and Curaçao together (For a global overview see Van Zyl Smit & Appleton, 2019). Yet, these numbers are not comparable, because the incarceration levels in countries with more inhabitants will logically be higher as well. The rate per 100,000 inhabitants is needed in order to relatively compare incarceration levels of lifers internationally. The United States’ rate of lifers per 100,000 inhabitants is 50.33, while for India it is 5.53, South Africa 22.67, the United Kingdom 13.41, France 0..73, and for Germany, the Netherlands, and Aruba and Curaçao it is respectively, 2.42, 0.19, 0.97, and 1.92 (Van Zyl Smit & Appleton, 2019).
Besides legal and execution differences regarding life imprisonment, there are differences in which crimes are sanctioned with life sentences at an international level as well (Van Zyl Smit & Appleton, 2019). Initially, life imprisonment, as severest sentence next to the death penalty where
still applicable, was meant to be meted out only to offenders of the gravest crimes (Nellis, 2013). Though the majority of lifers are sentenced for homicide (United Nations, 1994; Van Zyl Smit & Appleton, 2019), offenders of sexual assault, aggravated assault/robbery/kidnapping, drug offense, property offense, and in the United States ‘three strikes and you are out-principle’ are also eligible for imprisonment for life (Mauer, 2018; Nellis, 2013); Penal Reform International et al., 2018; Van Zyl Smit & Appleton, 2019). In her research, Nellis (2013) stated that 87,933 (64.3%) of imprisoned lifers in the United States were convicted of homicide. Another research, conducted in Canada by Ruddell, Broom, and Young (2010), reported a percentage of 73.6 lifers convicted of homicide. In addition, according to the United Nations (1994) approximately 80 percent of lifers are convicted of homicide in England and Wales. The remaining 20 percent is divided as follows, 8 percent of manslaughter and 12 percent of arson and other violent or sexual offenses against persons. In the most recent research about life imprisonment (Van Zyl Smit & Appleton, 2019), it is stated that the approximate percentage of lifers convicted of homicide in the United States is 63.8, in the United Kingdom 76 percent, in France, 75.9 percent, and the percentages in Germany and the Netherlands rise to respectively 99.4 and 97.5 percent (the remaining 2.5 percent concerns a perpetrator of genocide sentenced to life imprisonment, but which is not considered homicide).
For the reason homicide is the most common crime for which offenders are sentenced to life imprisonment, the focus of this research will be on lifers convicted of this crime. Just as life imprisonment is considered to be the severest punishment to impose, homicide is considered to be the severest crime to commit (Johnson, Van Wingerden & Nieuwbeerta, 2010), and is internationally defined as the intentional killing of a human being by another (Campbell, 2012; DeLisi, Drury & Elbert, 2018; UNODC, 2014). Though many regions and individual countries on the globe have experienced a decline or stabilisation in annual homicide rate over the last decades (Liem, 2018; Liem & Campbell, 2014; Marshall & Summers, 2012; UNODC, 2014), from 1997 onwards imposed sentences for homicide generally became longer and life sentences have increased tremendously (Campbell, 2012; Ganpat & Liem, 2012; Grant, 2001). Similarly to life imprisonment, data gathering and cross-national comparison of homicide is a difficult task as well (Liem & Campbell, 2014). Firstly, crimes and sanctions are mainly defined by laws from the national criminal code (Smit et al., 2012), thus containing minor or significant differences hindering exact comparison. In addition, data is not available or incomplete for all nations, and separate data sources contain different information about homicide and sentencing (Liem & Pridemore, 2012; Marhsall & Summers, 2012). However, despite these constraints, there are several prior studies
about homicide and life imprisonment at the national level but at the cross-national comparison level as well (Campbell, 2012; Liem & Pridemore, 2012).
What follows is an enumeration of homicide rates per 100,000 people, in order to illustrate the scope of homicide globally and regionally. A global estimate of the absolute number of deaths from intentional homicide in 2012 is 437,000, with a global average of 6.2 per 100,000 persons (UNODC, 2014). The distribution of intentional homicides at a global level shows a polarisation. This becomes evident when analysing the dispersal of homicide. Approximately a third (36 per cent) of the 437,000 homicides occurred in the Americas, 31 per cent in Africa, 28 per cent in Asia, and Europe (5 per cent) together with Oceania (0.3 per cent) accounted for the lowest proportions of homicide. Homicide rates show a similar polarisation, with Southern Africa and Central America with rates above 24 victims per 100,000, followed by South America, Middle Africa and the Caribbean with rates between 16 and 23 victims per 100,000, and Asia, Oceania and Europe with rates around 3 victims per 100,000 (UNODC, 2014).
It is now clear that life sentences implicate significant infringements of freedom of homicide offenders and in addition homicide and imprisonment are omnipresent phenomena with highly costs for both the victim as well as society around the world (DeLisi et al., 2018; Jaitman & Keefer, 2017). In the Netherlands a day in prison per prisoner costs society €208 euro, resulting in €75,000 euro per prisoner annually (Van Wingerden, 2011). For mentioned reasons it is important to shed light on both phenomena, meaning that their establishment, justification, and understanding are in need of analysis. Comparison of sentencing decisions of life imprisonment for homicide between countries may result in a better understanding of why and in which cases judges apply specific reasoning in their sentencing decisions, leading to similarities or disparities in sentencing. This is of utmost importance, because some of the principles of judicial systems are transparency (Klik, 2017), legal equality as well as legal certainty (Ulmer & Johnson, 2004).
In this regard, the Kingdom of the Netherlands is a particularly interesting case. The focus of this research is on the Kingdom of the Netherlands, but before going into details about this it is meaningful to visualise the Kingdom’s legal structure. Since the initiation of the Kingdom of the Netherlands in 1954 it has experienced several changes concerning its legal structure. Formerly the Kingdom of the Netherlands was composed of the Netherlands located on continental Europe and its constituent countries Surinam and the Netherlands Antilles located in the Caribbean Sea. The latter composed of six islands; Aruba, Bonaire, Curaçao, Saba, Sint Eustatius, and Sint Maarten. The first change occurred in 1975 when Surinam became an autonomous, independent country. The second change happened in 1986, when Aruba became an autonomous country within the Kingdom.
The last changes occurred more recently. On October 10, 2010, there came an end to the Netherlands Antilles as political unity. Curaçao and Sint Maarten became autonomous countries within the Kingdom like Aruba in 1986. Bonaire, Sint Eustatius, and Saba (the BES islands) transformed into the Dutch Caribbean as they received a status of special municipalities within the Kingdom of the Netherlands (De Jong, 2009; Leertouwer, Zaalberg & Busker, 2015; Nehmelman, 2009). Although only the BES islands are legally considered the Dutch Caribbean, the term Dutch Caribbean may also refer to all Caribbean islands within the Kingdom of the Netherlands. Hence, for convenience when referred to the Dutch Caribbean in this research, all six islands (Aruba, Bonaire, Curaçao, Saba, Sint Eustatius, and Sint Maarten) are included, unless otherwise indicated.
Aforementioned, the homicide rate and imposed life sentences of European Netherlands (from now: the Netherlands) are relatively low internationally seen, on average between 0.9 and 1.3 per 100,000 inhabitants and a total of 32 imposed life sentences (Liem, Van Wilsem, Smit & Nieuwbeerta, 2012; Van Zyl Smit & Appleton, 2019). Contrary to the relatively low rate of the Netherlands, it is known that the homicide rate of the Dutch Caribbean is significantly higher (Weenink, 2009). However, these numbers are much more difficult to determine for the Dutch Caribbean due to the fact that prior research about these subjects regarding the Caribbean region does not include the Dutch Caribbean in their analysis (Chioda, 2016; Godinez Puig et al., 2016; Jaitman, 2015; 2017; Sutton & Ruprah, 2017; UNODC, 2014). Nonetheless, there is a restricted amount of prior research that focuses on the Dutch Caribbean in particular, however very limited in scope and numbers due to a variety of reasons. Notably, sources about homicide numbers and rates contradict each other partly due to applying different definitions of what homicide entails (Faber, Mostert, Nelen, Van Nunen & La Roi, 2007), databases from the local police, public prosecutor’s office, courts, prisons, and the probation service employ different strategies regarding registration, or there is simply no information available/obtainable partly due to poor registration and the lack of the islands’ capacity (Leertouwer et al., 2015).
Despite these limitations, the comparative rates Faber et al. (2007) stated in their research are illustrative for the significantly higher homicide rates in the Dutch Caribbean compared to the Netherlands. In 2003, approximately 1.26 homicides per 100,000 inhabitants took place in the Netherlands, whereas on Curaçao (let alone the whole Dutch Caribbean) it were 39.39 homicides per 100,000 inhabitants. Though this was a peak year for Curaçao, even in 2005 when the number was reduced to 16 per 100,000 on Curaçao, it is still twelve times the relative number of European Netherlands. In addition, for Aruba and Bonaire almost similar results were presented (Faber et al.,
2007), and the homicide rate for Sint Maarten in 2010 was 31 per 100,000 inhabitants (Mesu, Stoffers & Harrigan, 2011).
Regarding life sentences in the Dutch Caribbean there is no information available at all, except for the number given by Van Zyl Smit and Appleton (2019): Aruba 1, Curaçao 3. The only available information concerning incarceration in general in the Dutch Caribbean is the research produced by Leertouwer et al. (2015). Their research describes general data about incarceration levels within the Kingdom of the Netherlands. As this was one of the first studies about incarceration levels within the whole Kingdom of the Netherlands and due to aforementioned reasons regarding the limited scope of research on this topic, they were not able to specify the data beyond providing general descriptions of registrations derived from the databases from the local police, public prosecutor’s office, courts, prisons, and the probation service. However, it is noteworthy to show the incarceration rates per 100,000 for 2013, the last year Leertouwer et al. (2015) analysed. It is illustrative to show the significant and substantial differences between the Netherlands and the Dutch Caribbean. Leertouwer et al. (2015) were able to specify the incarceration rates separately for the Netherlands, Aruba, Curaçao, BES-islands and Sint Maarten, respectively being 75, 233, 285, 382, and 396. This is however not categorised in any sense, resulting in data about lifers in the Dutch Caribbean continuing to be a dark number.
Thus, what clearly came to the fore is a substantial disparity between what is known and unknown regarding available data about homicide and life sentences in the Kingdom of the Netherlands. This research’s nature is therefore partially exploratory. Data about lifers convicted of homicide from the Netherlands is widely available, whereas this data in the Dutch Caribbean is nonexistent at this point in time. The first part of the analysis of this research was therefore an attempt to map offenders of homicide sentenced to life imprisonment in the Dutch Caribbean.
In turn, the disparities between aforementioned data about homicide and lifers in the Kingdom of the Netherlands is particularly interesting, because the Dutch Caribbean and the Netherlands are both part of the same Kingdom. While nearly having the same judicial system, 20 out of 27 judges in the Dutch Caribbean being sent out Dutch judges (in 2001), and strong similarities of substantive criminal law, it does not have to mean that the imposition of penalties show exact similarities between the two parts of the Kingdom of the Netherlands (Reijntjes, 2002). Judges in the Kingdom of the Netherlands have high discretionary authority, meaning that they decide which sanctions and/or non-punitive measures to mete out on offenders considering the law, facts and circumstances of every specific case (Tak, 2008; Van Wingerden & Nieuwbeerta, 2010).
research on this topic focused on extralegal and organisational factors, such as race, ethnicity, social economic status, jurisdictions, amongst others (Albonetti, 1991; Ulmer & Johnson, 2004). Though legal factors such as prior convictions and crime severity are present as well in the existing literature, contrary to the abundant research of social and organisational factors, an extensive list of legal factors as well as a comparative analysis of these factors that may or may not contribute to sentencing decisions of life imprisonment for homicide between countries, but within the same Kingdom, is lacking.
Subsequently to the exploratory part to map the offenders of homicide sentenced to life imprisonment in the Dutch Caribbean, the remainder of this research is explanatory as it is tried to explain what legal factors contribute to sentencing decisions of life imprisonment for homicide in the Kingdom of the Netherlands. The main research question derived from this is: ‘Which legal factors contribute to the sentencing decision of life imprisonment for homicide in the Dutch Caribbean compared to the Netherlands, and how can this be explained?’. Questions that are in line with the main question, but are not explicitly subquestions, are: What is the scope of life imprisonment sentences in the Dutch Caribbean?, How does this differ compared to the Netherlands?, What legal factors may explain this difference?, and How can we theoretically make sense of this difference?
In order to be able to come to a comprehensive and thoroughly answered research question, chapter two starts off with an empirical background regarding sentencing disparities, sentencing for homicide and variation in life sentences. Consequently, the theoretical background includes the main theoretical underpinnings of (life) sentencing decisions and legal factors. Chapter two ends with an elaborate clarification of the applicable laws from all concerned criminal codes and other legislation. The next chapter, methodology, includes the methods used in this research; the research design, data gathering, data exploitation and data analysis. Penultimate, the analysis and results are reported in chapter four. These results entail both the exploratory as well as the explanatory part of this research. Ultimately, the results are interpreted in light of the theoretical framework and an answer to the research question is formulated in the discussion and conclusion. This last chapter includes strengths and limitations of this research as well as recommendations for future research.
Theoretical Framework Empirical Background
Inherent to sentencing decisions is the restriction to the freedom of the offender receiving punishment (Johnson, 2011). The goals of imposing punishments to whom violates the law are
multiple. The most well known punishment goals are retribution, general - and special prevention, incapacitation, rehabilitation, and confirmation of legal rules (De Bont & Meijer, 2013a; Van Laanen, 2003; Van Wingerden, 2011; Wermink, Van Wingerden, Van Wilsem & Nieuwbeerta, 2015). Despite the fact that judges are bound to the law, they have high discretionary power (Tak, 2008; Van Wingerden & Nieuwbeerta, 2010). As a consequence of this discretion, sentencing disparities between similar cases may arise (Brantingham, 1985). One of the explanations for this is that it may be the case that personal preferences of the punishment goals are noticeable in sentencing decisions (Reijntjes, 2002; Wermink et al., 2015). Some judges may consider retribution more important whereas others may prefer to impose punishment with rehabilitative goals, logically resulting in sentencing disparities. However, as prior research on disparities between sentencing is abundant (Brantingham, 1985; Engen & Gainey, 2000; Johnson, 2011), a variety of explanations can be found in the existing body of knowledge.
There are several factors on which prior research has focused to explain disparities in sentencing, including legal factors, extralegal factors, and organizational factors (Albonetti, 1991; Engen & Gainey, 2000; Ulmer & Johnson, 2004). Due to judges being bound to the law, the first determinants that influence sentencing decisions are legal factors (Dixon, 1995). In researching other factors besides legal factors, it is of utmost importance to first control for legal factors (Engen & Gainey, 2000). Prior research on legal factors has mainly focused on two factors, namely crime severity and prior convictions of the suspect. In the early work of Brantingham (1985), she stated that research showed results that prior convictions as well as crime severity increases the chance for imprisonment as well as a lengthier time of imprisonment. Thus more prior convictions and a more severe crime led to sentencing decisions of longer imprisonment compared to a relatively low amount of prior convictions and a less severe crime (Dixon, 1995). In line with her findings, Engen and Gainey (2000) concluded that offense severity and prior convictions are the principal determinants of sentence type and length. They conducted several analyses and the results showed that the explained variance of type of sentence and sentence length was, for 94% in model 1 towards 99% in model 4, attributable to the two mentioned legal factors. Furthermore, the major part of existing literature that includes legal factors in their analysis came to the conclusion that offense severity and prior convictions are significant positive predictors for sentence type and sentence length (For more elaborative but similar results, see reviews of prior research within some of these studies) (Albonetti, 1991; Auerhahn, 2007; Bushway & Piehl, 2001; Dixon, 1995; Ulmer & Johnson, 2004; Wermink et al., 2015).
Moreover, the focus of the majority of existing literature on sentencing disparities is concerned with extralegal (Albonetti, 1991; Brantingham, 1985), and organisational factors (Dixon, 1995; Ulmer & Johnson, 2004; Van Spaendonck, 2017). Due to the purpose of this study, a limited amount of extralegal and organisational factors are highlighted. Initially since the 1930s (Johnson, 2011), these studies focused on the influence of perpetrator characteristics gender, race and ethnicity on sentencing disparities. Results showed that men are punished harsher than women (Brantingham, 1985; Engen & Gainey, 2000; Wermink et al., 2015). This concerns both sentence length and type of sentence, the latter entailing that women are less likely to be incarcerated (Johnson, 2011). Studies regarding race and ethnicity are abound and mainly concluded that minorities, including black and Hispanic offenders, receive harsher punishments (Bushway & Piehl, 2001; Engen & Gainey, 2000; Johnson, 2011; Ulmer & Johnson, 2004; Wermink et al., 2015). Moreover, the existing body of knowledge contains studies on organisational factors exerting influence in sentencing outcomes as well. Organisational factors that possibly play a role are size of the court, caseload, jail capacity, and trial rate amongst others (Ulmer & Johnson, 2004). Results of various studies show that court size, case load and trial rate are factors that exert a negative influence on incarceration levels and lengths, although not always at a significant level (Johnson, 2011; Ulmer & Johnson, 2004), and sometimes contradictory results are reported (Reijntjes, 2002). Findings also show that a variety of combinations of extralegal and organisational factors may exert direct or indirect influence on each other or on legal factors. However, within prior research not all findings about the effect of extralegal and organisational factors on sentencing decisions are congruent (Albonetti, 1991). As illustration, Steffensmeier, Kramer and Streifel (1993) concluded that women are incarcerated less often, but gender does not necessarily exert an influence on sentence length. In addition, Albonetti (1991) found contradictory and inconsistent evidence about race, where some state that minorities are disadvantaged, others found opposite results, and still others found no significant relation.
The above mentioned legal, extralegal and organisational factors contributing to sentencing disparities in general for the whole spectrum of offenses, thus it may be expected that the already discussed factors are of influence for homicide sentencing as well. What is more, homicide is considered to be one of the severest offenses to commit which comes along with severe consequences for the victim in particular (Liem & Campbell, 2014), consequently additional factors come into existence. Johnson et al. (2010) and Auerhahn (2016), reported in their study on homicide sentencing that offender and victim relationship represent an important extralegal factor of sentencing decisions. This does not only include the relationship, but gender, status, and race of the
victim as well similarly to the offender characteristics. Victim characteristics such as low-status, belonging to a minority, and being female, all contribute to harsher punishments for offenders of homicide. Additionally, offense characteristics as modus operandi and modus deliciti may contribute to sentencing disparities as well (Johnson et al., 2010).
Concluding about factors contributing to sentencing disparities, findings that are congruent are results of prior research about extralegal and organisational factors which show inconsistencies, whereas results of legal factors are consistent (Albonetti, 1991). Moreover, when taking all discussed factors into consideration when analysing disparities between sentencing decisions, the influence of extralegal and organisational factors is oftentimes diminished, insignificant, or left out in case of extralegal variables in homicide sentencing (penultimate paragraph of this section), showing the importance of legal factors as main determinants of sentencing decisions (Albonetti, 1991; Bushway & Piehl, 2001; Engen & Gainey; 2000; Hester & Hartman, 2017; Johnson, 2011; Ulmer & Johnson, 2004). However, as there are more legal factors than offense severity and prior convictions to take into consideration, the remaining part of this section guides towards additional legal factors in order to fill the gap in knowledge.
Theoretical Background
It is clear that there is a substantial body of literature on sentencing decisions, judicial discretion, and legal and extralegal factors influencing these factors. Despite being a high on the agenda topic and the controversiality of sentencing decisions of life imprisonment for homicide, since its imposition there is no prior research that focused on these exact subjects. This is probably not due to a lack of interest, but rather due to a lack of available information or a lack of comparability if the required data is present. Accordingly, this does not mean it is not possible to study such an under-researched relation. The fact is, general sentencing decision theories are invented in the past and developed over time (Hartley, Maddan & Spohn, 2007; Ulmer, 2012), and may be applicable to sentencing decisions of life imprisonment for homicide. For the reason that the scope of sentencing theories is rather broad and do not all contribute equally to this study, what follows is an elaboration of sentencing theories with most added value to this research, subsequently working towards the theoretical framework used in this study.
To emphasise again, when it comes to sentencing judges in the Kingdom of the Netherlands have a high discretionary power (Tak, 2008). In his book, Tak (2008) explains that the law judges are bound to has a limited amount of statutory rules. The rules about meting out sentences which judges need to abide to are set broadly, consequently allowing the judiciary to impose single
punishments or measures or a combination hereof. Due to the absence of strict sentencing rules, hence high discretionary power of judges, each case can be assessed individually, leading to tailor-made judgements and sentencing decisions. As desirable as this seems, judges are obligated to take a panoply of factors into consideration when judging a case and determining which sanction to impose. Subsequently, possibly bringing significant sentencing disparities between similar cases into existence (Tak, 2008).
After a period of research on sentencing early twentieth century where a concrete theory of sentencing was lacking (Van Wingerden, 2015), a first sentencing theory was invented which was based on the conflict theory (Ulmer, 2012). This theory as point of departure has for several decades (approximately 1960s until 1990s) dominated sentencing research (Albonetti, 1991; Ulmer, 2012), and basically states that the law and justice system are means to an end from the upper-class to suppress the lower-class (Crow, 2005; Van Wingerden & Nieuwbeerta, 2006). Translated to sentencing decisions it meant that suspects from the lower-class (perceived lower-class may imply women concerning gender, and minorities concerning race/ethnicity) will receive harsher punishment contrary to a defendant from the higher-class (Auerhahn, 2007; Van Wingerden, 2015; Wermink et al., 2015). However, some studies found this to be true whereas others found contrary results, especially when legal factors were accounted for (Auerhahn, 2007; Crow, 2005; Dixon; 1995; Van Wingerden, 2015; Van Wingerden & Nieuwbeerta, 2006; Wermink et al., 2015). In relation to this, dating from the second half of the twentieth century a second sentencing theory is the patriarchal or chivalry theory (Van Wingerden, 2015; Van Wingerden & Nieuwbeerta, 2006). This theory too focuses on perpetrator characteristics, gender particularly. The explanation provided for greater leniency of sentences meted out on women compared to men, is the cast of men as judges acting as protecters of the weaker sex on the condition that women fulfilled the traditional picture of a woman (e.g. married, children) (Van Wingerden, 2015; Van Wingerden & Nieuwbeerta, 2006).
The conflict theory and patriarchal theory both found their explanatory power of disparities in sentencing decisions in perpetrator characteristics. After a period of predominance of these theories, it was acknowledged that not solely perpetrator characteristics, next to legal factors, exerted influence on sentencing decisions. A third theory, the organisational theory of sentencing, came into existence. This theory advocates that characteristics of the trial as well as the criminal judicial organisation play a significant role in the decision making process (Ulmer, 2012; Van Wingerden, 2015; Van Wingerden & Nieuwbeerta, 2006; Wermink et al., 2015). According to this theory, factors that are of influence are the specific court where the trial takes place, the phase of the
trial (first instance, appeal), the workload of both the judiciary as the prosecutorial office, the character of the judge, public prosecutor, and the attorney (Wermink et al., 2015). In a research of Ulmer (2012) results about the influence of some of these factors are affirmative. He stated that courts of a bigger size and courts with a heavy workload were less likely to impose imprisonment compared to smaller courts and courts with a less heavy workload.
Regardless of the empirical and theoretical gain of sentencing theories at the time, genuine gain on this topic did not occur and the majority of scientific research concerning sentencing was based on the conflict theory as well as the patriarchal theory (Van Wingerden, 2015). However, as these theories do not account for more perpetrator characteristics, victim characteristics, and legal factors such as the severity of the offense and prior convictions of the perpetrator, a need for a true sentencing theory originated (Wermink et al., 2015). Early 1990s, Steffensmeier et al. developed and utilised the focal concerns theory (1993; Crow, 2005; Hartley et al., 2007). This theory puts the judge who has to decide which punishment to impose at the center, and instead of utilising and applying theories derived from other scientific areas, this was the first authentic sentencing theory (Crow, 2005; Van Wingerden & Nieuwbeerta, 2006).
In their initial research they stated that judges are guided by two focal concerns in order to explain gender differences in sentencing decisions (Steffensmeier et al., 1993). The two concerns judges are guided by in their sentencing decisions are blameworthiness and practicality. However, as research about sentencing decisions developed, so did the focal concerns theory of sentencing. Besides gender, the theory has recently been used to explain sentencing differences based on demographic characteristics such as age, ethnicity and race (Hartley et al., 2007; Van Wingerden & Nieuwbeerta, 2006). Furthermore the two existing focal concerns, culpability and practicality, are complemented by a third concern ‘protection of society’. Even though these developments broadened the applicability of the theory within sentencing decision making, judges rarely have all the information necessary to determine and address all three focal concerns (Hartley et al., 2007; Van Wingerden & Nieuwbeerta, 2006). In order to ascertain all focal concerns they develop a ‘perceptual shorthand’. Due to this shortcoming of incompleteness of available information, judges use stereotypes about race, ethnicity, gender, age and social class (Hester & Hartman, 2017; Van Wingerden & Nieuwbeerta, 2006; Van Wingerden & Van Wilsem, 2014; Wermink et al., 2015). Thus, judges incorporate legal factors as well as a perceptual shorthand when sentencing, consequently leading to different sentencing decisions for different groups/individual perpetrators (Crow, 2005; Johnson et al., 2010; Van Wingerden & Nieuwbeerta, 2006).
According to Van Wingerden and Nieuwbeerta (2006) does the focal concerns theory of sentencing and its limitations not completely cover all the factors judges take into consideration when taking sentencing decisions within the Dutch legal system. Nonetheless, as the focal concerns theory of sentencing is considered to be the first actual sentencing theory, Van Wingerden and Nieuwbeerta (2006) used this theory as point of departure in order to modify and complement it in such a manner to formulate six, instead of three, focal concerns applicable to the Dutch legal system. Van Wingerden and Nieuwbeerta (2006) state in their research that Dutch judges do not necessarily solely focus on three focal concerns. Instead derived from the law and Dutch law reports, Van Wingerden and Nieuwbeerta (2006) argue that judges, next to legal factors, primarily focus on crime -, perpetrator - and victim characteristics when deciding upon a sentence. The perceptual shorthand as discussed stays present due to the inevitable incompleteness of information judges have to decide their decision upon. A combination of the original focal concerns theory of sentencing and the crime -, perpetrator - and victim characteristics led Van Wingerden and Nieuwbeerta (2006) to come up with the following six main questions or focal concerns:
1. What are the statutory regulations? 2. What are the legal crime characteristics? 3. What are the crime circumstances? 4. What are the perpetrator characteristics? 5. What are the victim characteristics? 6. What are the trial conditions?
The fact that their theory is adapted to the Dutch legal system, the Dutch Caribbean and the Netherlands are both part of the Dutch Kingdom, and since they have a similar penal system (Reijntjes, 2002), this theory is most applicable and comprehensive to develop the theoretical framework used in this research. It has become clear from the empirical background that prior research has focused on legal factors contributing to sentencing decisions. However of limited scope and the majority focused on extralegal and organisational factors contributing to sentencing decisions. Legal factors taken into consideration in prior studies are mainly crime severity and prior convictions of offenders (Albonetti, 1991; Dixon, 1995; Ulmer & Johnson, 2004). Notwithstanding, prior studies also showed that many of the social factors do not exert an influence, or a lesser influence, on sentencing decisions when accounted for legal factors (Bushway & Piehl, 2001; Engen & Gainey; 2000; Hester & Hartman, 2017). What can be extracted from this is the importance of legal factors contributing to sentencing decisions. Even if only two legal factors are taken into consideration, extralegal factors account for a lesser influence on sentencing. In addition,
there are more legal factors judges take into consideration when sentencing (homicide) offenders. What follows is a clarification of legal factors used in this research. The majority of legal factors are derived from the adjusted, but not all, focal concerns developed by Van Wingerden and Nieuwbeerta (2006). Justification hereof comes from their adaptation of the focal concerns theory towards a better application for the Dutch legal system. Furthermore, as most legal factors are explicitly discussed in the criminal code and jurisprudence section, additional legal factors not derived from one of the six focal concerns are discussed in those sections as well.
The first focal concern, statutory regulations, consists of the type of punishment and the level of sentencing. Despite high discretionary authority, judges in the Netherlands are bound to the law. The law states which punishments may be imposed for the designated offense as well as the severity of the punishments. This focal concern is composed of only legal factors, namely sanction type and level of punishment. Closely related to the statutory regulations is the second focal concern, the legal crime characteristics. Derived from the accusation judges are able to determine the severity of the crime, for which crime a suspect is prosecuted, and if the suspect is accused for multiple crimes (Van Wingerden & Nieuwbeerta, 2006; 2010). This research is concerned with homicide. However, it is possible and may be expected that this crime is supplemented with other offenses. Legal factors obtained from this focal concern are crime, crime severity, and multiple crimes. Lastly, from the last four focal concerns, only the perpetrator characteristics contains additional legal factors. Not age, gender, or ethnicity, but prior convictions of the offender and psychological well-being or mental state. The latter is especially important in the Dutch legal system, therefore elaborated upon in the criminal code section. The other three focal concerns, crime circumstances, victim characteristics, and trial conditions can be purely classified as extralegal or organisational factors, hence they do not contain any legal factors of interest for this research. Concluding, the legal factors derived from the adjusted focal concerns by Van Wingerden and Nieuwbeerta (2006) are, sanction type, level of punishment, crime, crime severity, multiple crimes, prior convictions, and psychological well-being.
Criminal Code and Other Legislation
Whereas Article 39 paragraph 1 of the Charter for the Kingdom of the Netherlands (Dutch: Statuut voor het Koninkrijk der Nederlanden) states that criminal law within the Kingdom of the Netherlands is as much as possible similarly regulated (Reijntjes, 2002), the Netherlands, its constituent countries and the BES-islands all have their own criminal code. Implicitly it is thus possible that certain laws or regulations deviate from one another, meaning that they vary in what
they entail, or for example the presence of particular regulations in the criminal code of the Netherlands whereas absent in the criminal code of Sint Maarten and vice versa. The current criminal code of the Netherlands is effective as from April 1, 2019 (Criminal Code Netherlands, 2019), the criminal code of BES-islands as from March 1, 2017 (Criminal Code BES-islands, 2017), the criminal code of Aruba as from February 15, 2014 (De Doelder, Salverda Verbaan & Verbeek, 2014), the criminal code of Curaçao as from November 15, 2011 (De Doelder, Verbaan & Verbeek, 2011), and the criminal code of Sint Maarten as from June 1, 2015 (De Doelder, Bakker, Salverda & Verbaan, 2015). For convenience, when referred to the criminal codes in this section the following references are used unless otherwise indicated, ‘BES’ for the BES-islands’ criminal code, ‘Constituent countries’ for the criminal code of Aruba, Curaçao and Sint Maarten together, and ‘Netherlands’ for the Dutch criminal code.
In this section it is first mentioned which sanctions and non-punitive measures exist in the Kingdom of the Netherlands. In turn, a brief categorised enumeration is provided of crimes for which life imprisonment may be imposed, whereafter homicide is explicated. Penultimate, a non-punitive measure called terbeschikkingstelling is elaborated upon, lastly clemency (Dutch: Gratie) and conditional release in the case of life imprisonment is discussed.
Sanctions and non-punitive measures. The principal punishments that can be imposed in the Kingdom of the Netherlands are imprisonment, detention, community service, and a fine. Supplementary punishments are deprivation of specific rights, forfeiture, and publication of the court’s decision. Non-punitive measures are withdrawal from circulation, confiscation of illegally obtained profits, obligation to pay compensation, committal to a psychiatric hospital, entrustment order in- or excluding compulsory treatment (Dutch: Terbeschikkingstelling, [TBS]), and placement into an institution for persistent offenders (Beaujean & Van der Leij, 2018; Tak, 2008). These are all possible sanctions and measures, however they can not all be imposed everywhere within the Kingdom of the Netherlands. For convenience and the purpose of this research Table 1 provides an overview of the punishments and measures in the criminal law for the Netherlands, Aruba, Curaçao, Sint Maarten and the BES-islands.
Table 1
Sanctions, non-punitive measures, clemency, and conditional release in the case of life imprisonment within the Kingdom of the Netherlands
Moreover, focusing on imprisonment, legislation from the Kingdom of the Netherlands does not provide a mandatory minimum. The statutory minimum of imprisonment is one day and the maximum depends on designated offenses and aggravated circumstances. In the Netherlands the maximum prison sentence lasts 18 years, but for designated offenses and aggravated circumstances the maximum is prolonged to 30 years (article 10 paragraph 2 and 3). Before 2006 the maximum length of imprisonment was 20 years (Van Wingerden, 2011), the change from 20 to 30 years as maximum temporary incarceration may have implications for whether or not to impose life
Netherlands BES-islands Curaçao Sint Maarten Aruba Punishments
Imprisonment ✓ ✓ ✓ ✓ ✓
Detention ✓ ✓ ✓ ✓ ✓
Community service ✓ - ✓ ✓ ✓
Fine ✓ ✓ ✓ ✓ ✓
Deprivation of specific rights ✓ ✓ ✓ ✓ ✓
Forfeiture ✓ ✓ ✓ ✓ ✓
Publication of the court’s
decision ✓ ✓ - -
-Measures
Withdrawal from circulation ✓ ✓ ✓ ✓ ✓
Confiscation of illegally
obtained profits ✓ ✓ ✓ ✓ ✓
Obligation to pay compensation ✓ ✓ ✓ ✓ ✓
Committal psychiatric hospital ✓ ✓ ✓ ✓ ✓
Terbeschikkingstelling ✓ ✓ ✓ ✓ ✓
Institution for persistent
offenders ✓ - - -
-Legislation
Clemency ✓ ✓ ✓ ✓ ✓
Conditional release life
sentences, because this reduces the gap between life imprisonment and the maximum length of temporary imprisonment. For the BES-islands, Curaçao, and Sint Maarten the maximum length of imprisonment is respectively 24 and 30 years (BES: article 11 paragraph 2 and 3; Curaçao and Sint Maarten: 1:13 paragraph 2 and 3), and lastly for Aruba respectively 15 and 30 years (article 1:13 paragraph 2 and 3). All parts of the Kingdom of the Netherlands, however not compulsory in any case (Tak, 2008), retain the possibility to impose the severest sentence of life imprisonment (BES: article 11 paragraph 1; Constituent countries: article 1:13 paragraph 1; Netherlands: article 10 paragraph 1). It must be told that though judges’ discretion allows them to impose a combination of punishments and/or measures, if imprisonment for life is meted out it is not possible to mete out other punishments or measures besides deprivation of specific rights, forfeiture, and publication of the court’s decision (BES: article 61; Constituent countries: article 1:11 paragraph 5; Netherlands: article 59).
Crimes and life imprisonment. According to the principle of proportionality, the severest punishment is only allowed to be imposed for the severest crimes. In the Kingdom of the Netherlands there are approximately 30 offenses for which life imprisonment can be imposed. Internationally compared, the Kingdom of the Netherlands does not impose life sentences on offenses that are not considered the worst of the worst. Offenses that can be charged with life imprisonment can be divided into four categories. The first category consists of crimes against the State, country, king or governor (Netherlands: articles 92 et seq.; BES: articles 96 et seq.; Constituent countries: articles 2:1 et seq.). The second category is composed of a panoply of offenses such as arson, causing a flood, cause an explosion, assault amongst others. These offenses all have in common that the offender must have committed the offense with intent and as consequence of that act anybody demised. Any offense committed with terrorist intent is the third category. Lastly, kept as separate category for this research, homicide can be charged with life imprisonment.
Homicide and aggravated manslaughter. Homicide can be defined in several ways, but in this research it is used as a collective term to cover the offenses murder, manslaughter, and aggravated manslaughter. In their criminal codes, all parts of the Kingdom of the Netherlands include the same definition for each of the offenses. The only two differences can be found in the severity of punishment for ‘plain’ manslaughter in the criminal code of the Netherlands and the BES-islands. The former charges manslaughter (article 287) with a maximum of 15 years
imprisonment, while the latter charges a maximum of life imprisonment (article 300). All constituent countries of the Kingdom of the Netherlands charge manslaughter with their maximum temporary imprisonment. Aggravated manslaughter and murder are in all parts of the Kingdom of the Netherlands charged with the possibility of life imprisonment and otherwise their maximum temporary imprisonment.
In order of perceived severity of the offenses (Johnson et al., 2010), the wordings of manslaughter in the criminal code: “Hij die opzettelijk een ander van het leven berooft, wordt, als schuldig aan doodslag, gestraft met…” (BES: article 300; Constituent countries: article 2:259; Netherlands: article 287). Aggravated manslaughter is defined as:
“Doodslag gevolgd, vergezeld of voorafgegaan van een strafbaar feit en gepleegd met het oogmerk om de uitvoering van dat feit voor te bereiden of gemakkelijk te maken, of om, bij betrapping op heterdaad, aan zichzelf of andere deelnemers aan dat feit hetzij straffeloosheid hetzij het bezit van het wederrechtelijk verkregene te verzekeren, wordt gestraft met…” (BES: article 301; Constituent countries: article 2:260; Netherlands: article 288).
Lastly, murder is defined as: “Hij die opzettelijk en met voorbedachten rade een ander van het leven berooft, wordt, als schuldig aan moord, gestraft met…” (BES: article 302; Constituent countries: article 2:262; Netherlands: article 289).
Simply put, for all three offenses somebody’s life is taken by another person. The main difference between manslaughter and aggravated manslaughter versus murder, is the inclusion of willful intent or premeditation for the latter (Johnson et al., 2010). Even though only the criminal code of the BES-islands retain the possibility to impose life imprisonment for manslaughter nowadays, this research is concerned with all three above mentioned offenses for the reason that two of the other legal factors are crime severity and prior convictions, which may play a part in cases where initially only manslaughter was charged, and due to the relative recent enactment of the criminal codes some cases have applied old legislation (which will be mentioned where necessary).
Terbeschikkingstelling. If an offender at the time of the crime is deemed to find oneself in a mental state to the extent that he cannot be held accountable for his actions, in the Netherlands there is an option to impose an entrustment order in- or excluding compulsory treatment, called terbeschikkingstelling [TBS] (Johnson et al., 2010; Murray, 2009). Being deemed unaccountable may implicate that the offender is deemed fully or partially unaccountable. For the latter, the option to impose both imprisonment and TBS is retained (Beaujean & Van der Leij, 2018). After
imprisonment, the offender is transferred to a mental institution designated for special treatment (Johnson et al., 2010). The reason to mete out the non-punitive measure TBS is not deterrence nor retribution, but to protect society from dangerous offenders (Van Spaendonck, 2017). Judges are informed by experts’ reports about individual cases including their perspective on the mental state of the offender as well as an advice on what to do. In turn for severe offenses such as homicide, if the judge decides to impose TBS and the received treatment does not contribute to decrease the offender’s dangerousness, judges may prolong the mandatory treatment as often as deemed necessary (Van Spaendonck, 2017). As mentioned earlier in this section, if life imprisonment is imposed, no other sanctions or measures may be meted out besides deprivation of specific rights, forfeiture, and publication of the court’s decision (BES: article 61; Constituent countries: article 1:11 paragraph 5; Netherlands: article 59). Hence, if TBS is considered to be necessary, justification of significantly long imprisonment or life imprisonment is lacking (Murray, 2009).
In Table 1 it is shown that all parts of the Kingdom of the Netherlands retain the possibility to impose TBS (BES: Leidel-Schenk, 2019b; Constituent countries: article 1:17; Netherlands: article 13). Despite the arrangements of TBS de jure, de facto only the Netherlands put full TBS-treatment into effect. Despite the fact that since the 1950s a bill about TBS was laid down in the Dutch Caribbean, it was never enacted until the current criminal code (Leidel-Schenk, 2014). The Dutch Caribbean do have some restricted options available, however due to lack of capacity, expertise and resources full TBS-treatment is not available nowadays (Drayer, 2016; Henriquez, 2019; Hofmann, 2017; Leidel-Schenk, 2014a; 2019; 2019a). As a result of the lack of TBS on the Dutch Caribbean de facto, it may implicate severe consequences for the sentences to be imposed. Therefore as already mentioned, mental state or psychological well-being is included as legal factor.
Clemency and conditional release. Discussions about whether life imprisonment in the Kingdom of the Netherlands is actually de jure and de facto irreducible are dense (Damen, 2012). This section only provides information about whether or not life imprisonment in the Kingdom of the Netherlands is irreducible which is considered to be important in light of this research.
To date, life imprisonment in the Netherlands means de facto a life long in prison (Liem & Schuyt, 2017; Van Hattum, 2013; 2017). However, de jure there are possibilities to be released earlier. The first option is by means of a civil procedure, however as the civil judge has never decided upon releasing a lifer (De Bont & Meijer, 2013), this option is merely theoretical thus disregarded. The second option for lifers to opt for early release is clemency (or a pardon). Article 2 paragraph b of the Pardons Act (Dutch: Gratiewet) is particularly important for clemency as it states
that clemency can be granted if the initial goals of punishment are fulfilled, meaning further punishment is unwarranted (Van Wingerden & Schoep, 2013). In all parts of the Kingdom of the Netherlands it is possible to request a pardon, while the Dutch Caribbean officially do not have an enacted Pardons Act. The requests for a pardon are applied in the same manner, except in the Dutch Caribbean a request has to be directed to the governor whereas in the Netherlands it is directed to the king (Verschueren, 2017). Before 1986 a pardon was granted to almost every lifer (De Bont & Meijer, 2013a), but since 1986 no requested pardon has been granted anymore, with one exception in 2009 (Damen, 2012; Meijer & Claessen, 2013). The reason for granting this request of a pardon was based on compassionate grounds to allow the terminal lifer depart his life at home surrounded by family (De Bont & Meijer, 2013; Van Hattum, 2013; 2017). Thus the active pardon-policy from before 1986 with its focus on resocialisation of lifers has changed into a sleeping-policy that is never used. In addition, the last time in 2009 was based on compassionate grounds, consequently disregarding article 2 paragraph b of the Pardons Act (Meijer & Claessen, 2013). Thus, in the Kingdom of the Netherlands it is de jure possible to request a pardon (see Table 1), but de facto it will not be granted or it will be granted on wrongful grounds.
Moreover, in light of jurisprudence of the European Court of Human Rights (ECtHR), the current sleeping-pardon-policy of the Kingdom of the Netherlands is in conflict with article 3 of the European Convention on Human Rights (ECHR), because it is inhuman to incapacitate any human being without any prospect of release (Murray, 2009). Article 3 of the ECHR states: “Prohibition of Torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment. In several cases of the ECtHR about life imprisonment and article 3 ECHR, it is concluded that imposing life imprisonment may be rightful, but withholding lifers a possibility for review and a prospect of release may be in conflict with article 3 ECHR (Damen, 2012; Van Hattum, 2013). Therefore the ECtHR concluded that lifers have the right to have a prospect of release and a possibility to review their sentence (Van Bergen, Maes & Lispet, 2017;). The review should be about, what is also stated in article 2 paragraph b of the Pardons Act, whether the initial goals (e.g. retribution, protection of society) of punishment are fulfilled. In addition, the ECtHR concluded that from the moment the punishment is imposed, the lifer has the right to know what he should do, and when and under which circumstance he has a de facto prospect of release (Meijer & Claessen, 2013). Not only does the lifer have these rights, he should also get the opportunity and resources (e.g. treatment) to do whatever necessary in order to be eligible for release (Van Hattum, 2017). If the latter are not provided and the lifer is in need of a treatment, the punishment goal protection for society will never be fulfilled, meaning that a de facto prospect of release is out of question (De
Bont & Meijer, 2013a). A good example of a situation like this is the much-discussed case of the murder of a six year old girl in 1979. At the point when Curaçao integrated conditional release for lifers (November 2011), after 33 years of imprisonment the perpetrator requested conditional release, but the concerning court of appeal argued that the society still needed to be protected as he did still pose a threat to society due to being untreated (De Bont & Meijer, 2013a). Consequently, de jure complying with the terms and conditions of the ECtHR, but de facto proving the contrary (Van Hattum, 2017).
Conditional release and review for lifers in the Kingdom of the Netherlands (as shown in Table 1), is not presented in legislation in all parts. Only the constituent countries, Aruba, Curaçao, and Sint Maarten retain the possibility for review and conditional release. In article 1:30 of the constituent countries the following is stated, complying with the rules of the ECtHR:
“Lid 1: de veroordeelde tot levenslange gevangenisstraf wordt nadat de
vrijheidsbeneming ten minste twintig jaren heeft geduurd voorwaardelijk in vrijheid gesteld indien naar het oordeel van het Hof verdere onvoorwaardelijke
tenuitvoerlegging geen redelijk doel meer dient.
Lid 2: Het Hof neemt daarbij ten minste in zijn beschouwing de positie van het eventuele slachtoffer of directe nabestaanden en het gevaar dat de veroordeelde alsnog zal recidiveren.
Lid 3: in het geval dat het Hof niet tot invrijheidstelling overgaat, beoordeelt het de situatie opnieuw na vijf jaren en zonodig telkens na vijf jaren.” (Constituent countries: article 1:30).
The only difference between these countries is Sint Maarten’s period of minimum imprisonment of 25 years compared to 20 years for Aruba and Curaçao. In addition, for this research it suffices to mention that a new bill concerning a prospect of release for offenders sentenced to life imprisonment in the Netherlands, proposed by state secretary Dijkhoff in 2016, presents possibilities de jure, but de facto no changes are experienced yet (Van Bergen et al., 2017; Liem & Schuyt, 2017). What can be expected from regulations about review and conditional release, is that judges are more careful with imposing life sentences if such regulations are not enacted, due to the severe consequences life imprisonment has for offenders of homicide in the Kingdom of the Netherlands. Therefore, in this research review/conditional release is included as legal factor in perspective of the sentencing decision’s place in time; before or after initiation of the regulation.
Methodology
In order to be able to analyse sentencing decisions of life imprisonment for homicide in the Dutch Caribbean compared to the Netherlands in context of legal factors’ contribution, in this chapter the research design, used methods for data gathering and data analyses are elaborated upon as well as clear strengths and limitations of the used methods, consequently this research’s validity and reliability is valued.
Research Design
As mentioned, this research is both exploratory and explanatory. Due to the lack of available data about life imprisonment in the Dutch Caribbean, the first part of this research’s analysis is of exploratory nature. The scope of lifers in the Dutch Caribbean is mapped, whereafter a quantitative approach is used to outline this data in general and in addition compared to the scope of lifers in the Netherlands. Subsequently, due to the small N of lifers in the Kingdom of the Netherlands qualitative analysis of judgements from the Dutch Caribbean as well as the Netherlands is conducted. Besides discussed legal factors, this includes the analysis of the motivation of judges on whether or not to impose life imprisonment. This approach of mixed methods (quantitative and qualitative) allows for a rather descriptive overview initially, consequently delving deeper into cases for the purpose of understanding the explanatory value between sentencing decisions from judges in both the Netherlands and the Dutch Caribbean. The application of mixed methods results in gaining more complete in-depth knowledge, and compensating for weaknesses of either research methods’ weaknesses.
Data Gathering
The data necessary for analysis consisted of two main parts. First of all, the data about lifers in the Netherlands was handed over by Foundation Forum Levenslang. This foundation is a panel of experts who are devoted to making life imprisonment more humane, consequently change the regime of life imprisonment (“[Doelstelling Forum Levenslang],” n.d.). The database Forum Levenslang provided contains data about lifers in the Netherlands, including four lifers taken over from abroad. These lifers are convicted of homicide, thus concerning murder (article 289 Criminal Code Netherlands), and (aggravated) manslaughter (articles 287, 288 Criminal Code Netherlands). The database includes demographic factors of the defendants, and if applicable details about the cases at the court of first instance, courts of appeal, Supreme Court, and the ECtHR. Essential variables from cases at each court include, amongst other factors, the demand of the public
