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Leiden Law Cast: The prison population NL vs. BE with Miranda Boone

Leiden Law Cast is a podcast made by Leiden Law School, Leiden University, for everyone who wants to learn more about current legal issues.

Irem Çakir (L) and Hamza Duprée

Today, Professor Miranda Boone talks to us about fluctuations in detention populations. Miranda was a student on the very first criminology course taught in the Netherlands, at the time still part of the law degree at the VU University in Amsterdam. The small course –Miranda says they were happy with 15 enrolments a year, because that meant the course could continue – was a godsend for her because she had always been interested in the deviant, marginal side of society. It’s hard to imagine that there was little interest in studying criminology back then. Leiden University currently receives around 1000 applications for the bachelor’s degree in criminology, with a numerus fixus set at 160!

During her student days, Miranda was not the type to sit still. She was president of the study association Crime Does Pay, organised excursions abroad, and gained experience under the supervision of renowned emeritus professor of criminal and criminal procedural law Constantijn Kelk. After graduating, she started as a lecturer in criminology at the VU with some help from criminology ‘heavyweight’ Henk van der Bunt. Later, she spread her wings and set sail for Utrecht where she obtained her doctorate and also became Professor in Penitentiary Law and Penology at the University of Groningen.

Next, we move on to the business of the day: prison populations, and in particular fluctuations in numbers and the implications of these. The Netherlands today has very few prisoners per 100,000 inhabitants, with a ratio of 58 – far below the European average which easily tops 100. Traditionally, the Netherlands has a low detention population and relatively favourable detention conditions. The British criminologist David Dowes referred to this in the 1970s as Dutch tolerance because the Netherlands has a tradition of pragmatic tolerance in relation to deviant behaviour. Miranda also points to the good resocialisation of (ex-)detainees and the clear impact of criminal justice abolitionism at the time as reasons for the detention population being so low.

From the mid-1980s to 2005, however, this changed dramatically. The number of prisoners per 100,000 inhabitants increased four to five times. The main reason, however, was not a sharp increase in crime, but the way in which detention was applied in the Netherlands. Now, it was used for various groups where this had not previously been the case, for example, forensic patients (known in Dutch as TBS'er), foreign nationals in detention, suspects in pre-trial detention and juveniles detained under civil law. Since 2005, however, there has been a striking decline in the detention population, something Miranda is now conducting research into with a team.

She is willing to tell us about some of the cautious findings from this research. Registered crime, in any case, has fallen since then. However, in criminology it is always difficult to depend on this kind of data because of uncertainties concerning its reliability. The same caution applies to the drop in the level of registered serious crime. One interesting perspective Miranda's research provides here is the comparison with Belgium, where the prison population is about twice that of the Netherlands. Is (serious) crime so much more common there? Or has this to do with the Dutch Public Prosecutor's Office and the police, for example? Are they unable to identify and prosecute crime adequately? Or are cases in other countries more likely to come before the criminal courts, whereas in the Netherlands the administrative courts might be considered the more appropriate route? This is clearly a fascinating trend that is still shrouded in a veil of mystery, which Miranda's team is trying to pierce using systematic research.

Hosts Irem and Hamza point out that this sharp decline in the prison population is difficult to reconcile with the current tone in politics. How does this trend relate to the punitive rhetoric, strict terrorism legislation and repressive tone when it comes to punishment? Miranda notes that the Netherlands stands out in Europe because of its high number of short-term prison sentences (< 3 months) which are often used for pre-trial detention or as a means to recover an unpaid fine. Does that point to tolerance, or a highly punitive approach by the Netherlands? This question arises in particular when one bears in mind that in Belgium someone with a custodial sentence of less than three months serves it at home wearing an electronic ankle monitor. Miranda has a good point: a Dutch prison sentence is often aimed at resocialisation, whereas Belgium leaves the ankle bracelet wearer alone in their own home.

On the subject of short detention, such as substitute detention, another influential article on this subject was published by a team of Leiden researchers including Miranda. It argues that short detention has high costs (around 200 euros a day) and can have a negative impact on the conventional ties a detainee had before detention, but it is also too short a period to have an effect in terms of progress. So in short, there are many disadvantages and few advantages. Short sentences are therefore often given to groups that judges prefer not to punish for a long time, but for whom other forms of punishment seem inappropriate. For example, people without a residence permit and people with psychological, financial or drug-related problems. These types of repeat offenders where the underlying problems are not addressed are popularly are known as ‘revolving door’ criminals.

Partly in light of these groups, Miranda cites the phrase ‘every society gets the crime it deserves’ and ‘the prison (population) is a reflection of society’. By this, she means that the way a society treats prisoners is a good measure of how social a society is. After all, it’s a difficult task to deal humanely with those who are so low on the social ladder. But it also means that the crime rate, and thus the prison population, reflects existing social issues. Finnish research in particular shows that there is a clear correlation between GDP, social climate, trust in public institutions and policy related to benefits, and the composition and size of the prison population.

Miranda urges us, and all listeners, to visit a prison at some point. It's really not as much of a hotel as people often say. Irem has visited a prison before and agrees. Miranda calls for a policy of humane treatment in prison, in which certain basic rights are safeguarded for prisoners. Where the Netherlands excels in terms of prisons is in the treatment of its prisoners. Studies show that Norwegian and Belgian detainees who were transferred to the prison in Tilburg said they were treated well by staff. The treatment is often friendly and it is possible to chat together informally. It's not uncommon to see staff playing sports with detainees or smoking a cigarette together. In this regard, our system is remarkably non-top down, though changes can now be seen. An amicable relationship between staff and detainees is sometimes difficult to maintain in view of the current trend related to accountability. Staff have to continuously assess the behaviour of detainees and – based on this assessment – detainees can be given more or fewer rights.

A critical view can be taken of the accountability system: many detainees are people who, in the outside world, were unable to order their lives properly on their own. But as befits a guest on Leiden Law Cast, Miranda has something to add on this: order in a correctional facility is strongly regulated by a system of punishment and reward. This system addresses an implicit function of imprisonment which is to maintain peace and order in the institution, something that has long been seen as significant in the literature. It should not be forgotten that a small group of staff members is responsible for making sure that the large group tows the line.

In light of the various trends discussed in this episode, Miranda would like to pay further attention to the fundamentally changed way in which certain factors are dealt with in determining a sentence. In the 1960s and 1970s, grounds for clemency were still considered in relation to poverty, unemployment, or a disadvantaged family background. A less severe sentence was given if the blame did not appear to lie entirely with the offender. However, blame is the ground for imposing a sentence. In today's era of high-risk grounds, such factors are often precisely a reason to punish more harshly in order to repressively manage the risk of recidivism. While Miranda in no way condones this, she does note that it is to some extent inherent in the criminal justice system. People from a good background rarely end up in prison, for example because they can pay high fines or because judges do not want to interrupt their employment. Professor Boone concludes with a brief plea concerning the treatment of people who have become caught up in the criminal justice system. Let's treat them as part of society and not dismiss them as pariahs. This starts with language – Miranda is personally not in favour of the word 'criminal'.

Closing with our regular ‘words of wisdom’, Miranda addresses the listeners who are students. Since the lockdown due to the Covid pandemic, she’s noticed that students are not coming to lectures and tutorials. And when classes are online, the chat remains very quiet and cameras are switched off. Don't do that! Students should be eager, wanting to get the most out of all their courses. No matter how boring a subject might be, try to make connections between your courses and what you are experiencing. Ask questions and make the most of everything your time as a student has to offer.

The Leiden Law Cast (in Dutch) is available via the following:

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