In October 2021, the Council for Criminal Justice and Youth Protection (RSJ) released another refreshing report: "Short detentions taken a closer look". It has now also dawned on the RSJ that short detentions are often of little use and, above all, cause much unnecessary harm and the detainees and their environment. The RSJ therefore believes that the number of short detentions should be reduced and advocates a meaningful, socially relevant and effective response to socially unacceptable behaviour. 

Mainly short detentions

A very large proportion of detentions last only a short time. About three quarters (74%) of all detentions last less than three months. This includes not only short detentions but also other modalities such as pre-trial detention and substitute detention. Too many short detentions as far as the RSJ is concerned. 

Short detentions are of little use and harmful

Short detentions are not very effective and/or meaningful. Opportunities for behavioural change are very limited. There is often not even time to prepare a proper D&R plan. On top of that, even a short detention can lead to detention damage through the (possible) loss of a job, income and the stigma of staying in a correctional institution for the offender and those around him. In addition, lack of social, physical and mental stimuli can have an adverse effect on important brain functions. Also, the risk of recidivism after detention would be high and detentions are expensive compared to alternatives. According to the RSJ. 

Merely the punitive purpose of retribution is insufficient

Besides their limited effectiveness, short detentions only partially meet the various sentencing goals. The deterrent effect of a detention is limited and there are only limited opportunities to participate in resocialisation and reintegration activities during, and following, a short detention. The punitive goal of retribution is met, but only this goal is insufficient in the RSJ's opinion.

Recommendations

The RSJ recommends that the minister make efforts to reduce the number of short detentions and encourage the application of meaningful(er) sanctions. The recommendations focus on pre-trial detention, imprisonment (including self-reporting and substitute detention.

• Pre-trial detention

Pre-trial detention should be suspended more frequently and conditionally. If necessary, electronic means of monitoring, such as an ankle bracelet, could be used for this purpose. This also does justice to the principle that a person is presumed innocent until proven guilty. The Netherlands is lagging behind in this area. Just recently, the Netherlands was reprimanded by the European Court of Human Rights because decisions on pre-trial detention needed to be (better) justified. 

• Alternatives to the short prison sentence

Under the community service ban, the judge is not allowed to impose community service for certain crimes and in case of recidivism of a similar crime. The RSJ recommends reconsidering this ban. Even if someone comes before the court more often, community service can be more meaningful than detention. 

There should also be more suspended sentences with tailored conditions. 

• Reducing substitute custody

Before a sentence is called for, there should have been better research into what sanction is appropriate and feasible. If the sanction is more personalised, conversions to substitute custody can be avoided. 

The implementation of community service and the collection of fines should also be improved to avoid enforcement of substitute custody. 

Good intentions for 2022

This research can be put to good use in court. At present, judges are only inclined to consider a suspension if there is a compelling personal interest. But with this report in hand, the judge may be more easily persuaded to release a detainee. When freedom is taken away, it should be done thoughtfully. And not on autopilot. Perhaps this report will lead to good intentions among the judiciary for 2022. 

Mr. D.M. Penn