Guilt and sentencing in the Netherlands: the impact of mental health reports
In one in four criminal cases in the Netherlands, the court receives a report on the state of the defendant’s mental health. How is that information used exactly and what are the consequences? Scientific research has been lacking in this area. The PhD research of Roosmarijn van Es is a first step in that direction.
Where there’s smoke, there’s fire?
‘It’s not something we’re aware of in practice, but we can’t rule it out either’, is heard over the video link. On her screen, Van Es sees the judges she asked to respond to her research findings. She has just presented them with the remarkable outcomes from a study among students.
Two hundred law and criminology students were asked by Van Es to take on the role of judge in a case involving a violent crime. Their case files sometimes contained a report on the defendant’s mental health, but sometimes no report was included. The defendant was said to have a tendency to display aggressive behaviour. The question before them: did the defendant commit this violent crime?
Mental health report increases likelihood of guilty verdict
When deciding on guilt, judges may not take into account information on the mental health of the defendant. But what appears from the study conducted by Van Es among students? ‘The mere fact that the case file contained a report on the mental health of the defendant made the conviction rate rise significantly’, says the criminologist. ‘The presence of this report, irrespective of its contents, influenced the findings to such an extent that if there was no report, 67 percent of the students found the defendant guilty, but if there was a report, the conviction rate rose to 85 percent.’
Van Es’ research findings come at a time when relations between the courts and forensic psychiatrists are on edge.
Judges not aware of this
Students, of course, are not judges. So it cannot be concluded from the outcome of the study among students that this is indicative of how judges form their opinion. Van Es: ‘I therefore put my findings to the judges and asked them: are you aware of this undesirable use of a report in practice?’ The response from the judges was a unanimous ‘no’.
Van Es: ‘I can understand that, because it’s difficult to acknowledge something that likely occurs unconsciously. At the same time, the judges were very open-minded and did not rule out that the possibility of a conviction increases when a report is included in the case file. They emphasised that this would never be a deliberate consideration. That said, they could all give an example of a situation where things might go wrong.’
Decisions in criminal proceedings
A criminal trial follows a standard sequence. First, the judges consider the question of guilt: did the defendant commit the offence they are accused of? A guilty verdict can only be given if there is sufficient evidence that the person committed the offence.
The judges then decide on the sentence. The central question being: can the defendant be held responsible for their actions? If not, they are not punishable and the court does not impose a sentence. However, they can order that a defendant receives psychological care, a TBS measure (terbeschikkingstelling) being the most well-known form of help in the Netherlands. This situation may arise, for example, if the defendant was affected by a mental disorder at the time the offence was committed; in that case, they were not acting of their own free will.
Thijs H.
Van Es’ research findings come at a time when relations between the courts and forensic psychiatrists are on edge. The reason for this is the ruling in the case of Thijs H.
In 2019, Thijs H. stabbed a woman to death and three days later went on to murder two other people. Forensic psychiatrists assessed that he could not be held fully criminally responsible for the offences due to a mental disorder. His new drugs had brought on a psychosis which had led to the fatal acts. The judges did not agree: Thijs H. was found to be partially criminally responsible and was sent to prison. Nonsense, said the experts: you can’t be slightly psychotic. In Dutch newspaper NRC, the spokesperson for psychiatrists in the Netherlands said: ‘If we establish that a person has suffered a psychosis, that’s not an opinion, it’s a diagnosis – a scientific assessment. A judge doesn’t question a diagnosis of cancer?’
In October, the Supreme Court upheld the sentence in the case of Thijs H. Psychiatrists now fear that defendants will not receive the care they need and will face punishment instead.
Towards a better assessment framework?
Following the Thijs H. case, psychiatrists now want to enter into talks with the judiciary to explore whether ‘together they can agree on a more differentiated and clearer assessment framework’.
The review of the cooperation between the two disciplines is in line with what Van Es has learnt: ‘From those working in the field, I heard that insufficient scientific research is being conducted at the intersection of forensic psychiatry and criminal law. Judges and psychiatrists say they are pleased with my research. There is room for improvement when it comes to communication between the two disciplines. For example, I was surprised to hear that it is not standard practice for a behavioural expert to hear what happened with their advice in a case. They only find out if they chase information themselves. I think it would be useful if experts heard what the consequences were of their advice. Perhaps that’s a practical issue, but I believe it also shows that more research is needed’.
Van Es will defend her disseration ‘The mind in the courtroom: On forensic mental health reports in judicial decision-making about guilt and sentencing in the Netherlands’ on 9 November 2023 at 15.00 in the Academy Building. Read the Dutch summary of her dissertation here and follow the livestream of the defence ceremony here.
Text: Helena Lysaght
Photo at top of article: Bernd Klutsch via Unsplash