Sanne Struijk on systemic distortions in sanctions law: 'A reconsideration of the revision of the sanctioning system is much needed'

Penal sanction law refers to the entirety of the imposition and enforcement of criminal sanctions. More broadly, according to Struijk, it looks at the question of how and by whom can, or even should, criminal behaviour be responded to, for what purpose this is done and what effect it has on the offender and society." Those purposes of penal sanction law are often referred to in general terms as retaliating for injustice, doing justice to victims and preventing crime or its recurrence.

A review is much needed

The legal system of sanctions is primarily found in the Penal Code. "Among other things, this system provides general rules on the applicable sanctions and their minimum duration, maximum duration and the possibilities of combinations between them", Struijk states. However, the purposes of punishment and the theory surrounding it have traditionally been regarded as a question of dogmatics, which need not be answered in the statute. Although the sanctions system has been founded on certain principles since the late 19th century, it also undeniably represents the translation of changing social and political views. "The law, and therefore also the law of sanctions, has always had to relate to that reality", Struijk explains.

"The legal sanctioning system has been tinkered with considerably in recent years", Struijk explains. "With admittedly increased possibilities for differentiation in the government's response to criminal behaviour, but without considering consistency and mutual coherence. Therefore, a rethink and revision of the sanctions system is much needed. Especially in these politically and socially turbulent times, when the same politics and society not only demand, and expect, a lot from sanctions law, but are also articulate enough to criticise its functioning."

Judicial sentencing freedom

Struijk explains that criminal courts have traditionally had much freedom to determine the sanction in a specific case. In doing so, the legislator sets the framework in which the criminal judge operates. "But it is deliberately left to the judge to measure the appropriate sanction, as it were, according to the weight of the offence, the content of the criminal file and the person of the accused, of which he has taken cognisance."

"Also traditionally, that judge then has no responsibility for and control over the implementation of that sanction assessment decision", Struijk points out. Thus, the implementation of the sanction does not lie with the criminal court but with implementing organisations and administrative bodies under the responsibility of the Ministry of Justice and Security. "However, enforcement is an essential part of penal sanctions law", Struijk explains. "After all, the credibility and legitimacy of sanctions imposed is directly connected to their actual enforcement, but above all, to do so effectively and humanely."

Imposition and enforcement

"With enforcement being a direct extension of the court's assessment of the sanction imposed, it could also be seen as a single entity for the sake of credibility", Struijk argues. "However, instead of a streamlined whole, in my view, there are separate parts that are misaligned, resulting in systemic disruptions." According to Struijk, these distortions result in a situation where the essential elements of customisation and effectiveness of sanctioning are put under pressure. It is increasingly unclear with what purpose a sanction is imposed and what limits this places on its implementation.

Struijk argues that the method of enforcement of a sanction has become an increasingly important factor in judges' decisions on sanction assessment. This is striking since, as mentioned, sentencing and enforcement have traditionally been separated. "Whereas the legislator still adheres unabatedly to that distinction between imposition and enforcement, it is crumbling in the case law", Struijk states. "The changes in laws and regulations relating to imprisonment, for example, are piling up at such a rapid pace and are of such vital importance that criminal courts no longer seem to be able or willing to ignore them in their sentencing decisions completely."

Struijk emphasises that the judiciary seems to struggle with whether and how modified enforcement policies should affect the sanction decision. She gives several examples of this during her inaugural lecture. Then, she calls on the legislator and the judiciary to think through the goals in more detail from the perspective of streamlining the imposition and enforcement of sanctions. Among other things, she points "to the long-standing but recently legally enshrined possibility for the criminal court to give an opinion on enforcement, albeit non-binding, in the sentencing memorandum. In this process, a possibility could be found to really challenge that judge to express further views on the purpose intended by the sanction imposed in relation to enforcement."

An overarching vision is required

"The previous paints a worrying picture of the high social and political expectations of the operation of sanctions law on the one hand and its actual interpretation and operation on the other", Struijk concludes. "Where the legitimacy, credibility and effectiveness of sanctioning government action calls for a streamlined whole, this is lacking in practice. This, incidentally, is not due to that practice or its exercise, itself." Struijk, therefore, advocates the development of an overarching and integral vision of sanctions law: "a vision with an eye for the coherence of the various systematics, levels and responsibilities within sanctions law, anchored in a system that provides workable frameworks for all individuals, actors and bodies involved in the application of sanctions". Struijk is fully committed to this task in pursuing her chair.