Legal Inequality From The Netherlands Perspective

Legal Inequality From The Netherlands Perspective Presented by: Mr. Wermink and Mr. Light Date: 4 May 2023 Pre-trial detention in the Netherlands - Crijns, J.H., Leeuw, B.J.G., & Wermink, H.T. (2016). Pre-trial detention in the Netherlands. Legel principles versus practical reality: Research report Meijers-reeks nr. 265. The Hague: Eleven international publishing. • A high frequency of pre-trial detention that is being ordered • Grounds for pre-trial detention are easily accepted by the judges • Alternatives to pre-trial detention currently only exist as conditions to a suspension of pre-trial detention Current focus - Are pre-trial detention decisions different for nationals and foreign nationals? - What are the mechanisms that explain any differential legal treatment of foreign nationals? Why important? - Globalized world - Broader patterns of stratification are often reflected in the criminal justice system (Black 1976) - Yet, a remarkable lack of knowledge Citizenship and sentencing - Unifying theme • - punishment decisions are susceptible to factors beyond legally relevant criteria. Focus: within societies • - Race, class, gender "most sociologist of punishment remain wedded to a nationalist vision of state control, one unaffected by growing transnational flows and mobility" (Bosworth and Kaufman, 2011, p. 430) What we found: quantitative data - - - Foreign nationals overrepresented, PTD ratio: • 11% nationals • 26% foreign nationals Differences of foreign nationals versus nationals • More often involve a severe or very severe crime • More often theft and drug offenses • More often male and somewhat younger Compared to Dutch citizens arrested for similar conduct and with the same prior records: • Non-citizens are more likely to be detained pre-trial  The odds of detention are nearly three times higher for foreign nationals - The importance of pre-trial detention for the final sentencing decision: • Pre-trial detention substantially diminishes the likelihood of a non-prison sanction (b = -3.23) • - Resulting in more prison sentences But, what are the mechanisms? Importance of citizenship status - Citizenship status is more important for the pre- trial detention decision than other sociodemographic characteristics and having a prior prison stint Prison as only option - Pre-trial detention only possible when a prison sanction is expected - Prison as only option: • "It's a bit poor. If someone is a non-Dutch citizen, community service is not possible." [Judge] • "It is difficult for non-Dutch people to do some working sentence or some learning sentence. So you see it, and most of the time...we send them to jail." [Prosecutor] • "Yeah. I think so because also in the options, in the detention phase, you have less options. So that means, as a pretrial judge, you're already thinking about what options will the final judge have in the end? And because the options are also less in that respect, pretrial detention is more likely to be given, I would say. [Judge] Flight risk - Flight risk was referenced often, and risk of absconding is easily accepted when the accused does not have an official fixed residence • "So yeah, unfortunately, for those people, pretrial detention is a way to keep them in our influence, in our scope... the idea is that if we let them go in the pretrial phase... they are lost. We cannot find them back." [judge] • "For example, we have a lot of suspects from Eastern Europe ..., and if we let them go, they just vanish. So and we're talking about pickpockets and small crimes..." [judge] • "... most of the time, non-Dutch citizens don't have an address in the Netherlands... And we say when he stays in a country like that, we're concerned that he might go to that country, and we can't get him back to the Netherlands. So he'll stay here." [Prosecutor] Pre-trial detention as a way to punish - Rules versus practice • "there are certain rules, at least in the EU, that if you're talking small crimes, like max. four months' imprisonment, you won't get them executed in the Netherlands. At least, you cannot get the person extradited to the Netherlands to have it executed... And then, you see what happens is that pretrial becomes a way of almost punishing already." [Judge] - "Time-served" • "It is very double-edged, because as soon as somebody has been in detention until the hearing, the judges will give him the prison sentence, with the pre-trial detention to count as served." [Prosecutor] • "So and that's a situation nobody's really comfortable with, but it's the only way to do it, more or less."... "So then, it's not ideal, but that's the way it goes that they get the time served in pretrial. And then, that's it." [Judge] Nothing else but punishment - "It doesn't really feel like our problem" - "... this person has to work very hard to convince me that I must be mild to him or her" - The logic of punishment: • "Well, the whole idea of resocializing a person, in a way, that has an assumption that it's possible that someone builds up his life in a country. So if I have options to resocialize through punishment, I wouldn't do it if ... he's a non-national..." [Judge] • "Resocialization plays less of a role... if someone comes here to commit a crime, or who is leaving the country afterwards... the retribution argument comes more to the front." [Judge] • the only thing, then, what you want to do is to keep those problems out of your country by punishing harshly." [Judge] To conclude - Pre-trial detention represents an early case decision where foreign nationals receive more punitive treatment. - This ultimately yields a substantially higher likelihood of receiving imprisonment - Not a means of last resort, especially for foreign nationals, regardless of the offense - Citizenship important marker of legal stratification - Alternatives to pre-trial detention - • Possibilities not clear? • Too many practical hurdles? • Time pressure / high case load? Change practice, change culture. But how?