The minimum sentence-debate

POSTED: 09/5/11 12:48 PM

Attorney Cor Merx: “Hands off our judges”

St. Maarten – Justice Minister Roland Duncan is at odds with his advisor on the new penal code, prof. Hans de Doelder. The draft penal code abolishes minimum sentences, but Duncan opposes this. Minimum sentence-requirements are part of the current legislation, but not everybody is happy with it.
Attorney Cor Merx says that he understands both sides of the argument, but his conclusion remains firm: ‘The government ought to keep its hands off our judges.”
Minimum sentences apply under current law to armed robberies and extortion with the use of violence; not for first time offenders but for criminals who repeat such an offence within five years after a prior conviction became irrevocable. This explains why the rule does not apply to a serious crime like murder; it is highly unlikely that somebody will get away with a murder sentence that is so short that it will enable the convict to commit a second murder within five years after his sentence became irrevocable.
Applying the minimum sentence rule for repeat offenders requires that the prosecutor’s office specifically charges a suspect under the relevant article and that the court motivates this in its sentence.
The maximum penalty for armed robbery is 24 years imprisonment. Repeat offenders who commit armed robberies again within five years after a prior conviction will therefore have to serve a minimum of 12 years; however, the court could also choose another route and arrive at a basic sentence for the second armed robbery and then add one-third of that sentence.
The Supreme Court has ruled that suspects must be aware of the fact that the prosecution is applying the article for repeat-offenders to the case. The bottom line is that the relevant article must be part of the summons.
When the minimum sentence-rule was introduced in 2002, there was quite some commotion, Merx says.”The argument in favor of it was that it was time to put a stop to serious crimes. The question was of course whether a judge would be free to diverge from the rule. Politicians wanted to tie judges down, but most judges were not enthusiastic about it.”
The argument against the minimum sentence is that it interferes with the balanced distribution of justice. If it applies to armed robbers, how do judges then have to deal with accomplices, and with attempted robbery, and even with attempts whereby people got killed?’ Merx says. “Politicians have to keep their hands of our judges, but on the other hand, our judges will have to motivate their sentences in a decent way.”
De Doelder is a proponent of abolishing the minimum-sentence rule. In October of last year he wrote an opinion piece in Trouw establishing his opposition to plans to introduce minimum sentences into Dutch law.
The Dutch government argues that criminality is on the rise and that penalties are too low. “Both statements are untrue,” De Doelder wrote.
Because Dutch law does not regulate mitigating circumstances that could give judges the tools to judge cases on their individual merits, the introduction of minimum penalties would take away the option to take special circumstances into consideration.
De Doelder wrote that minimum penalties would violate the European Human Rights Treaty and that they would also undermine the call of society for judges to better motivate their verdicts.

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