Lawyer warns: Gut feelings determine punishment for murder and manslaughter
Anxiously and silently, the punishments for murder and manslaughter have been increased in the Netherlands, while it is anything but safer as a result, argues criminal lawyer Jordi L'Homme.
16-year-old Hümeyra tragically dies in 2018 when her ex-boyfriend Bekir E. kills her with seven shots on the grounds of her school. The case will receive much media attention later, including after it was revealed that Hümeyra was stalked by Bekir E. in the months leading up to her death. The court initially convicted him of manslaughter and imposed a sentence of 14 years in prison and tbs with mandatory treatment.
The Hümeyra case has become part of a political discussion about the level of the maximum penalty for manslaughter. Last Wednesday, the House of Representatives debated raising this legal maximum. If it is up to the proposers of the bill, former ministers Grapperhaus and Dekker, the maximum will have to go from 15 to 25 years.
During the parliamentary debate, all parties appeared to be in favor of an increase. But according to some parties (including coalition parties D66 and CU), a 10-year increase to 25 years is too hefty and a maximum sentence of 20 years is more appropriate.
Premeditated
The main reason for the bill is the difference with the maximum penalty for murder, for which a 30-year or life sentence can be imposed. Murder requires "premeditation," but due to a 2012 Supreme Court ruling, that "premeditation" is less likely to be assumed by judges, leading more often to a verdict of manslaughter. Therefore, the current maximum penalty for this crime would not do justice to the severity and would squeeze in practice.
The only question is whether the 15-year maximum sentence pinches in practice, now that it appears to be rarely imposed by judges. Apparently, they can get along just fine with the current maximum penalty for manslaughter. Moreover, if "premeditation" cannot be proven, "aggravated manslaughter" can also be charged. Then manslaughter is connected to another criminal offense: the caught burglar who, for example, kills someone to hide the burglary. And for aggravated manslaughter, the same maximum penalty applies as for murder.
The judge may also - as in Bekir E.'s situation - impose tbs with compulsory treatment, which requires people to undergo treatment for a long time after serving their prison sentence before they can regain their freedom.
Poor substantiation
The bill's explanatory statement cites only one other case (from 2016) besides the Hümeyra case that would justify the sentence increase. That is a very poor justification. The advice of the Dutch Association for the Judiciary is therefore telling: raising the maximum penalty for manslaughter to 25 years will not in practice lead to higher sentences.
Certainly, the penalty for someone who has killed a loved one often cannot be high enough. But the political debate about the usefulness and necessity of higher sentence caps (as well as longer prison sentences) has been anxiously silent in recent years. Examples include raising the maximum sentence for murder (to 30 years) and tripling the penalty for reckless driving.
In addition, on July 1, 2021, the Punishment and Protection Act went into effect. This increased the net penalty for prison sentences longer than six years. With such a sentence, the convicted person can only be released on parole up to a maximum of two years.
Gut feelings
Such increases seem to be based on the false assumption that harsher punishment makes the Netherlands safer. International research shows the opposite: harsher punishment leads to more, and also heavier, crime. Politicians would therefore do well to distance themselves from the gut feeling that the longer someone is incarcerated, the safer the Netherlands is. It is better to conduct the debate on the basis of empirical data and scientific research results, which show what does work.
On appeal, Bekir E. was convicted of murder and given a 20-year prison sentence and tbs with mandatory treatment. This case, which was frequently cited (including in last week's debate) in support of the need for increasing the sentencing cap on manslaughter, appears to prove precisely the lack of need.
