Investigation: judge already takes the suspect’s past into account in sentencing

Judges give higher sentences to people who have previously been convicted of serious violent or sexual crimes than they give to perpetrators who are before the judge for the first time. For example, an unconditional prison sentence is more often chosen, and the duration of that prison sentence is also longer. At first offenders an average prison sentence of 2.8 years is imposed, for repeat offenders this is an average of 3.7 years. Although judges, on average, impose heavier sentences on repeat offenders, there are also exceptions where lower sentences are imposed. This is evident from research by Radboud University, commissioned by the Scientific Research and Data Center (WODC).

The investigation was carried out at the request of then minister Sander Dekker (Legal Protection, VVD) following an adopted motion by MPs Joost Eerdmans and Caroline van der Plas in 2021. They wanted the possibilities for “long-term detention to be mapped out.” ” after three serious violent crimes and what legislative changes would be required. Dekker responded to the motion by stating that research is first needed to determine what role recidivism already plays in imposing a sentence.

The study analyzed 766 judicial decisions for violent crimes such as murder, rape, serious assault and public violence. In addition, discussions were held with judges, lawyers, public prosecutors and probation officers and 32 criminal files were requested and studied.

According to researcher Sonja Meijer, professor of penitentiary law at Radboud University, the report is in a sense also about confidence in the judge. “We have concluded that judges generally impose higher sentences if there is recidivism. Judges now say that they experience sufficient scope in the law to impose higher sentences.” But, says Meijer, that does not mean that repeat offenders automatically receive a higher sentence. “Judges make use of the space available for exceptions. With new legislation, that space could disappear.”

A limitation in the study was that judges do not always explain why the presence or absence of a criminal record plays a role in imposing the sentence. The researchers argue that judges should better indicate whether recidivism played a role in determining the amount of the sentence, because this can provide more clarity for suspects and the public.

The extent to which a judge indicates whether a criminal record carries negative weight varies greatly depending on the offense. In the case of murder and manslaughter, the criminal record was mentioned by the judge in more than half of the cases in the motivation for the sentence. This was much lower in rape cases: about one in five cases.

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Incorrectly interpreting the law

Another observation by the researchers is that judges sometimes interpret the law incorrectly. Under the law, judges are now allowed to exceed the maximum penalty imposed for some crimes. But this is only allowed if there is recidivism within five years. However, the researchers noted, many judges believe that the limitation period always applies, even if they do not intend to impose a maximum sentence, but a lower sentence. That is not true.

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