Abstract
This article examines the question to what extent offenders are involved in decisions regarding the sanction, measure and/or conditions that have been imposed upon them. More specifically, the article focuses on the offender’s involvement in the stage of implementation (or enforcement) of a conditional sentence or measure. It analyses Dutch legislation and practice on this point and evaluates them in light of the relevant provisions of the European Rules on Community Sanctions and Measures and the European Probation Rules. The research shows that Dutch legislation and practice are generally in conformity with these European instruments; all interviewed probation officers realise the importance of involving offenders and act upon this belief. However, on some points a higher level of offender involvement could be reached, and promoting the European rules amongst probation workers – who are mostly unaware of the existence of these rules – might contribute to this.
Introduction
The central question that is examined by this article is: to what extent do Dutch legislation and practice concerning offenders’ involvement in decisions regarding the imposed sanctions, measures and conditions, taken in the stage of implementation, correspond with the European Rules on Community Sanctions and Measures (ERCSM) and the European Probation Rules (ERProb)? The term ‘involvement’ in this article refers to any action of the offender, which can range from purely giving their opinion about – for instance – an imposed sanction or measure to their explicit consent being required. Thus, in this article consent is considered the most far-reaching form of involvement. However, merely informing the offender of the sanction, measure or condition to be imposed or executed is not considered to constitute involvement. In essence, a certain degree of deliberation or participation of the offender in the decision-making is sought. Canton (2014: 217) describes this as having ‘a full opportunity to discuss what the community sanction will involve’, which entails ‘much more than being told what it will involve […]’.
In order to delineate the research, this article focuses only on decisions taken in the stage of implementation (or: enforcement) of a conditional sentence. Thus, the article examines the question to what extent the offender is involved in decisions regarding the exact content of the conditions. 1 The reason for focusing on conditional sentences is that these are frequently imposed in the Netherlands. For instance, in 2013, 7410 partially conditional and 10,145 entirely conditional prison sentences were imposed (CBS StatLine, 2014).
Recently, several other researchers have paid attention to the involvement of offenders in decisions regarding the imposed sanction or measure. This has been done, for instance, by Hughes (2011: 49–65) and the authors who contributed to the special issue of the European Journal of Probation on consent and cooperation of offenders under supervision. However, there are still many questions to be answered. Morgenstern and Larrauri confirm that some research has been conducted on this subject, but there is still a lot to be done (Morgenstern and Larrauri, 2013: 135). This article aims to contribute to the current state of knowledge on this subject by providing an analysis of Dutch legislation and practice and evaluating them in light of the relevant provisions of the ERCSM and the ERProb. To our knowledge, this is the first research in which both the Dutch national legal framework and practice are in great detail evaluated in light of the ERCSM and ERProb. This firstly provides a thorough overview and evaluation of the Dutch legal system and practice in this regard. However, the research is also of value for scholars and practitioners outside of the Netherlands, since it examines issues that might also play a role in other jurisdictions. For instance, if the European rules are not well-known in the Netherlands, this could also be true for other countries, thus indicating that the rules are in need of promotion. Furthermore, the European rules themselves have also been critically reviewed, thereby exposing the provisions or terms which are in need of further clarification in order to properly guide national legislators and practitioners.
The importance of involving the offender in decisions regarding the implementation of conditional sentences is emphasised by several researchers, who indicate that offenders comply with the rules more often if they feel that they control the way in which the rules are enforced, which enhances procedural fairness (Weaver and Barry, 2014). This feeling of control can be evoked by involving them in the decision-making process (Van der Pligt et al., 2007: 43; Commentary to the ERProb, para. 85). Moreover, as Weaver and Barry (2014: 279) note, ‘[t]he change process underpinning the intended outcomes of community supervision, namely community safety, social rehabilitation and reintegration, cannot be achieved without the service user’s active participation in the process’, which makes their ‘consent and cooperation […] an instrumental concern in so far as it is fundamental to achieving these outcomes’.
Paragraph 1 discusses the relevant rules of the ERCSM and the ERProb. Subsequently, the second paragraph examines the Dutch legislation on the offender’s involvement and analyses it in light of the ERCSM and the ERProb. Paragraph 3 focuses on Dutch practice in this regard and again provides an evaluation in light of the European rules. Finally, the main findings are summarised and critically reflected upon, and some suggestions for further research are made.
Offender involvement in the European rules
The ERCSM and the ERProb, both Council of Europe instruments established in 1992 and 2010 respectively, complement each other and should thus not be read separately. They regulate all kinds of aspects of probation and are supposed to guide and support both the national legislator and national probation institutions (ERCSM, p. 2). Both instruments dedicate several provisions to the offender’s involvement, which are discussed in the following subparagraphs.
Offender involvement in the ERCSM
According to Rule 34, ‘[…] the offender should participate, as far as possible, in decision-making on matters of implementation’. According to the Appendix to the ERCSM, the reason for this participation is that ‘[…] the implementation of a community sanction or measure shall be designed to secure the co-operation of the offender and to enable him to see the sanction as a just and reasonable reaction to the offence committed […]’.
At first sight, Rule 34 seems to be formulated in a somewhat non-committal way. After all, the phrase ‘as far as possible’ leaves room for different degrees of participation. The Explanatory Memorandum offers some insight into this matter, but not much. It states that the offender’s participation is not required for every decision on the practical details of implementation: ‘[s]ituations can arise, for instance, which require a unilateral and perhaps coercive decision on the part of the implementing authority to ensure the fulfilment of basic conditions of the sanction or measure or set necessary limits to destructive behaviour’. The Explanatory Memorandum could have provided more clarification by giving concrete examples of such situations: What is meant by the ‘basic conditions of the sanction’ and when can behaviour be qualified as destructive? For instance, is reoffending always considered to be destructive behaviour and if not, at what frequency does it become destructive? Such clarifications are necessary for the rules to properly guide national legislators and probation officers.
Rule 58 states that ‘[t]he offender shall have the right to make oral or written representations prior to any decision concerning the implementation of a community sanction or measure’. The Explanatory Memorandum expresses the aim of this rule. It ‘seeks to obviate complaints about implementation by giving the offender the right to make oral or written representations prior to the taking of any decision on implementation’. The Explanatory Memorandum further states that, in order to enable the offender to express his/her opinion as well as possible, providing assistance by an interpreter may be required.
The term ‘representations’ can be defined as ‘[f]ormal statements made to an authority, 2 especially so as to communicate an opinion or register a protest’ (Online Oxford Dictionary). Thus, Rule 58 provides the offender with the right to express their views on the implementation of their sanction and to make known possible objections to the implementation. For instance, an offender may object to working during weekdays. Their views or objections may influence the probation officer’s subsequent decision on implementation. The fact that the offender can give their opinion on the way the sentence is implemented, means that s/he is involved in decisions regarding the sanction, measure or conditions.
It could be argued that Rule 76 is also relevant for this article. It prescribes that at the start of the implementation of a community sanction or measure, the offender must be informed about the content of the sanction or measure, what is expected of him/her, the consequences of non-compliance with the imposed conditions and obligations, and the rules that govern their return to the deciding authority in case of inadequate (or a lack of) compliance. The possible relevance of this Rule becomes apparent when one reads the Explanatory Memorandum, as it states that ‘[t]he information should in the ordinary way be given orally so as to permit a dialogue to take place between the practitioner and the offender’. If this dialogue permits the offender to state his/her opinion about the content of the sanction, measure or conditions or even influence decisions on these matters, Rule 76 deals with involvement of the offender and is thus of relevance for the purposes of this article. However, this is uncertain, since the rest of the Explanatory Memorandum emphasises the importance of giving clear, comprehensive and explicit information. Then the offender would not be involved in the decision-making process. In any case, Rule 76 does not excel in clarity, which arguably makes it difficult for Council of Europe Member States to implement this Rule correctly.
Offender involvement in the ERProb
Rule 6 ERProb states: ‘As far as possible, the probation agencies shall seek the offenders’ informed consent and co-operation regarding interventions that affect them’. The Commentary to Rule 6 implicitly makes a distinction between situations in which consent is a formal requirement and situations in which it is not. If formal consent is required, it is the job of the probation officers to make sure that offenders understand what their rights are and what the consequences of giving or withholding consent will be. If the offender’s consent does not constitute a formal requirement, consent still needs to be sought ‘as far as [this is] possible’. The staff then have to try to both make the offender understand what ‘consent’ means and to obtain his/her consent. If it is necessary to do something against the offender’s will, this has to be explained to him/her. By doing this, one might make the offender view the decision as legitimate and thus accept it (Commentary to the ERProb, p. 3). However, it is unclear in which situations consent is formally required and in which situations striving for the offender’s consent suffices. Again, this lack of clarity makes it difficult for national legislators and practitioners to know whether they are applying the rules correctly.
Rule 72 states that: ‘[A] work plan for the implementation of all sanctions and measures shall be prepared by the competent authorities and included in the case record. This plan shall guide the probation agency’s work and shall enable staff and offenders to assess progress towards the objectives set.’
Subsequently, Rule 73 determines that this work plan ‘shall be negotiated and, as far as possible, agreed with the offender’. Again, this Rule makes use of the phrase ‘as far as possible’, indicating that it will not always be possible to agree on the work plan or on specific parts of the work plan. However, this provision does seem to require that the offender and the probation agency always negotiate with each other. This view is not in accordance with the Commentary, for this declares that ‘[t]he process of planning’ should be the object of negotiations as far as this is possible (p. 22). Thus, negotiations between the probation agency and the offender and coming to an agreement on the work plan cannot always be required. However, to the extent that negotiations and the offender’s consent are required, the offender is involved in the development of the work plan. According to the Commentary (p. 22), another way in which the offender needs to be involved is that his/her doubts towards the plan need to be acknowledged and considered so that agreement can be reached. Since the work plan influences the way in which sanctions, measures and conditions are implemented, Rule 73 is of relevance for this article.
Offender involvement in Dutch legislation
Article 14a of the Dutch Penal Code (DPC) enables the judge to impose a sanction conditionally. This type of sanction is regulated in Article 14a–d DPC. Article 14c(2) DPC lists the special conditions that may be imposed. Examples of these conditions are the obligation to report to a certain institution DPC at certain times [(such as the probation service)], the obligation to undergo treatment by an expert or a healthcare institution, and the obligation to participate in an offending behaviour programme. ‘Other conditions regarding the offender’s behaviour’ may be imposed as well, according to Article 14c(2) DPC.
Articles 14a–14d DPC do not contain any provisions dealing with the offender’s involvement in decision-making regarding (the exact content of) the conditions. However, the Conditional Conviction Implementation Decree of 2012 (Uitvoeringsbesluit voorwaardelijke veroordeling, hereafter: Uitvoeringsbesluit) does regulate this issue. Article 3 of this governmental decree states: ‘The probation institution that is responsible for the supervision ensures that the nature and intensity of the supervision and the obligations that the offender has to fulfil are recorded’. It follows from the explanation to this provision that the nature and intensity of the supervision are determined in agreement with the offender, which indicates a certain extent of involvement. Agreements are also made as regards the exact content of the supervision. These agreements are laid down in the so-called ‘supervision agreement’ (toezichtovereenkomst), which is signed by the probation worker as well as the offender (Uitvoeringsbesluit, p. 5). The way in which the supervision agreement is developed and to what extent the offender’s signature indicates his/her consent is examined in paragraph 3.2.2.
Article 3 Uitvoeringsbesluit seems to correspond to the aforementioned Rules of the ERCSM. Firstly, Rule 34 ERCSM, which determines that the offender should – as far as possible – participate in decision-making on matters of implementation. Secondly, Rule 58 ERCSM, which expresses that the offender should have the right to make oral or written representations before a decision on implementation is made. The Dutch rule probably does not require that the offender should be able to make written representations, but since it does require that s/he is able to make oral representations, the Dutch rule is probably still in line with Rule 58 ERCSM. The Dutch rule is also in conformity with Rule 76 ERCSM, since the Explanatory Note expresses that information should ‘be given orally so as to permit a dialogue […] between the practitioner and the offender’, thereby requiring the offender’s involvement in the decision-making process.
Article 3 Uitvoeringsbesluit seems to be in accordance with the ERProb as well. Firstly, Rule 6 ERProb states that ‘[a]s far as possible, the probation agencies shall seek the offenders’ informed consent and co-operation regarding interventions that affect them’. Since an agreement at least requires co-operation and consent, the Uitvoeringsbesluit also seems to be in line with this Rule. Finally, Article 3 (read in conjunction with its explanation) is in conformity with Rule 73 ERProb, since this Rule determines that the work plan – which regulates the implementation of the sanction or measure and guides the probation agency’s work – shall be negotiated and, as far as possible, agreed with the offender. By negotiating with the offender, the probation officer strives to reach an agreement with them. Thus, here the ‘law in the books’ is in accordance with the European rules; paragraph 3 of this article examines to what extent ‘law in action’ is in conformity with the European rules as well.
The website of the Dutch probation service (www.reclassering.nl/wat-wij-doen/verdachten-en-veroordeelden/onder-toezicht, accessed 29 May 2014) – which can be regarded as an expression of the probation service’s policy – also mentions an aspect of the offender’s involvement: the offender needs to sign a so-called supervision agreement (toezichtovereenkomst), which entails inter alia all the agreements made between the offender and the probation worker regarding the exact content of the supervision. The work plan (see Rule 72–73 ERProb) is part of this supervision agreement. The term ‘agreement’ seems to indicate some involvement of the offender as regards the exact content of the sanction or measure. If this assumption is correct (which is examined in paragraph 3.2.2 of this article), the policy of the probation service is in line with the aforementioned European rules.
Another example of the offender’s involvement that is mentioned on the website of the Dutch probation service has to do with behavioural training (gedragstraining), which can be imposed as a special condition (Article 14c(2)(13°) DPC). It is stated that at the end of the training the trainer and the offender together design a concrete action plan. This indicates a certain degree of deliberation between the trainer and the offender, so if the action plan contains a description of how the supervision will proceed from now on and the offender was indeed involved in the deliberations leading up to this action plan, the offender is – as the European rules prescribe – involved in decision-making on the imposed sanction or measure.
It can be concluded that there is not much Dutch legislation on the extent to which the offender is involved in decisions regarding the imposed conditions. After all, the Dutch Penal Code (DPC) does not regulate this issue at all. Even though further regulation does deal with this subject, it does so through merely one provision (i.e. Article 3 Uitvoeringsbesluit), which does not even explicitly deal with the issue. One needs to consult the explanatory note to this provision in order to know that the Uitvoeringsbesluit indeed requires the offender to be involved. The only other source in this regard is the website of the Dutch probation service, which can at most be regarded as soft law. However, insofar as that these sources do regulate the extent to which the offender needs to be involved, their conformity with the relevant European rules is remarkable. Nevertheless, it would be recommendable if the offender’s involvement would be required by formal legislation as well. At a minimum, it should be prescribed by the Uitvoeringsbesluit itself instead of being mentioned only in the explanatory note, since the latter is even less accessible for practitioners than regulation is.
Offender involvement in Dutch practice
Methodology
The preceding paragraphs have focused on ‘law in the books’. However, it is also valuable to examine the ‘law in action’. Do practitioners even know the rules? And are the rules realistic, taking into account the way in which offenders are, in practice, involved in decisions regarding their sentence? Such questions can be answered only by actually talking to practitioners, that is, probation officers. Therefore, semi-structured interviews with 12 probation officers were conducted. Several topics were discussed, from the probation workers’ familiarity with the European rules to the importance of the offender’s consent. We elaborate upon our findings in the next paragraph.
The interviewed probation officers were employed by two of the three Dutch probation institutions: Reclassering Nederland and Stichting Verslavingsreclassering GGZ. The interviews were conducted at the offices of the probation workers and lasted approximately 45 minutes. The age of the probation officers ranged from 32 to 60 and the average age was 45,8. Ten probation officers were female; two were male. All interviewees were highly-educated, which means that they had either gone to university or to a community college (hogeschool). The interviewees’ work experience differed: some had been working as a probation officer for the last seven years, while others had been working there for 15 or even 36 years.
After the interviews had been conducted, the results were encoded, which made it in order to analyse them in a reliable way. The research questions were translated into different codes. For instance, the question whether the interviewee had ever heard of the ERCSM or the ERProb got the code ‘Europe’. Another code was ‘non-compliance’. Subsequently, each researcher read the interviews with several specific codes in mind. The parts of the interviews that corresponded with a certain code were copied and pasted in a document dedicated to that specific code. Thus, for example, in the end the document dedicated to ‘Europe’ contained the statements of 12 probation officers on this subject.
Main findings
The importance of involving the offender
The interviewees were asked how much weight they attach to the offender’s involvement in decisions regarding the sanction, measure or conditions. The answers to this question were almost unanimous: involving the offender is very important. Examples of the reasons probation officers provided for this are: ‘without them [i.e. offenders] I cannot do my job’; ‘if people were robots, I could do without their input, but I need them’; ‘I find such involvement self-evident’ and ‘I cannot do it on my own’. In other words: it takes two to tango. Apparently, probation officers’ intuition tells them that in order to achieve results and stimulate compliance with the conditions, involving the offender is essential. One probation officer indicated that the reason why she attached so much weight to involving the offender is that she does not want to rely on her authority and use the power that comes with it. The finding that probation officers attach much value to involving the offender is similar to Canton’s findings regarding England and Wales: there, probation officers always try to get the offender’s consent, even though English law does not require this (Canton, 2014: 218).
It is important to note that the answers of two probation officers differed slightly from the other answers. One probation officer stated that, although she finds involving the offender important, for her this does not entail their active participation in the decision-making; she merely explains to them why a certain sanction, measure or condition is necessary. Another probation officer indicated that the level of involvement differs per case. For instance, repeat offenders have already had a lot of chances. Therefore, less value is attached to their involvement. Thus, there are cases imaginable where the offender’s involvement is perceived as being of less importance. It is likely that these situations emerge especially when safety concerns prevail, as may be the case, for instance, when a conditional hospital order (TBS met voorwaarden) has been imposed.
Nevertheless, the fact that all probation officers recognised the importance of involving the offender in decision-making indicates that Dutch practice in this regard is in line with the European rules, since the latter too stress the importance of involving the offender. For instance, the Explanatory Memorandum to the ERCSM states that involving the offender is ‘of paramount importance’ and the Commentary to the ERProb (para. 85) points out that ‘[t]here are research findings that show that people are much more likely to cooperate when they feel they are being dealt with fairly’. Not only did the interviews show that Dutch probation officers are convinced that involving the offender in decision-making is important; this feeling also influences their day-to-day work to a large extent, for instance when it comes to developing the supervision agreement (see para. 3.2.2) or in case of the special condition of undergoing ambulatory treatment, where a three-party-agreement is required (see para. 3.2.3).
Developing the supervision agreement
Generally, the interviewees 3 indicated that the offender is involved in the development of the supervision agreement. However, the extent to and the manner in which they involve the offender varies. Part of the supervision agreement is the establishment of both personal goals and goals that are related to reducing the chance of reoffending. One probation officer expressed that she herself sets the second type of goals and discusses these with the offender, who subsequently has to sign the agreement. She stated: ‘This [i.e. the agreement] seems quite ready-made: “This is it, do you agree?” […] He needs to sign the agreement and can then take it with him’. This approach seems to correspond to Croatian law regarding this issue: there, the law prescribes that ‘[t]he probation officer will inform the offender about the aims of the programme […]’, which does not indicate any action of the offender (Sučić et al., 2014: 263). Thus, although there is some room for the offender to state their opinion and hence be involved to some extent in the decision-making, it might be preferred if the offender actually has a role in the development of the supervision agreement.
This type of involvement corresponds with the approach of three other Dutch probation officers, who involve the offender to a greater extent: they adjust the agreement in response to possible comments that the offender has made during their conversations. They stated that the supervision agreement is a dynamic document: ‘Goals can be removed or added. In that sense you co-operate with the client. So I develop them, but the client can suggest another goal and this is then added. […] However, […] it barely ever happens that clients themselves suggest a goal […].’
This, too, is in line with the situation as described by Sučić et al. (2014), who report very similar findings. Although the Croatian probation officers indicated that it is possible for offenders to be involved in drafting the supervision agreement, the offenders themselves did not experience a large degree of participation in this regard (Sučić et al., 2014: 270). With regard to the Norwegian situation, Johnsen and Storgaard (2014: 252) have observed that the law requires ‘[…] an obligatory plan for the fulfilment of the sentence [i.e. the community service]’. Norwegian law states that the supervisor and the offender should collaborate when making this plan. Thus, the offender has the right to be involved in the determination of the specifics of his/her community service. It is unclear whether this implies that the offender gets to suggests goals (as in the Netherlands and Croatia) or whether the offender’s involvement consists of some other activities. Furthermore, these findings relate specifically to the community service, so it remains to be seen whether the offender also has to be involved to such extent when it comes to the execution of other community sanctions or measures.
Yet, four other Dutch probation officers indicated that the goals that they develop are a direct consequence of their conversations with the offenders, thereby involving them to a very large extent. One of them even stated that she includes goals in the agreement that have nothing to do with lowering the risk of reoffending – such as the goal to quit smoking – if these goals are important to the offender.
It is also relevant to note that the interviewees indicated that the supervision agreement needs to be signed by the offender, which is officially a sign of his/her consent. Notably, Sučić et al. (2014: 272) also asked probation officers if the offender’s signing of the supervision agreement is an expression of consent. Some of them stated that it is, while others perceived it as a mere formality. One could indeed question whether the offender’s signature expresses true consent; after all, s/he does not have much choice, as refusing to sign will often ultimately lead to execution of the sentence (as the conditions are not complied with). Thus, the offender does not stand on equal footing with the probation officer, which raises the question whether the term ‘supervision agreement’ is appropriate.
Since the interviews generally show that the offender is to some extent involved in developing the supervision agreement, Dutch practice is in accordance with the European rules, on offender involvement in the stage of implementation. In particular, Rule 73 ERProb is of importance, which states that the work plan – which is part of the supervision agreement – ‘shall be negotiated and, as far as possible, agreed with the offender’. As several interviewees indicated that they develop a draft version of this supervision agreement that may be adapted as a consequence of conversations with the offender, and others even stated that they base the supervision agreement on conversations with the offender, the work plan is indeed negotiated upon as prescribed by Rule 73 ERProb. It could be argued that Dutch practice goes even further than Rule 73 ERProb requires. After all, the offender consents to the work plan by signing it, which means that the nuance ‘as far as possible’ is of no relevance in Dutch practice.
Determining the exact content of the special conditions
In Norway, the offender can always state their opinion on any condition imposed by the court to his/her probation officer. If the Probation Service wants to impose other conditions, the offender even has to give their consent: if s/he does not do this, the condition cannot be imposed upon them (Johnsen and Storgaard, 2014: 252). After a special condition has been imposed, it needs to be further concretised. In what ways are Dutch offenders involved in the determination of the exact content of the special conditions imposed upon them?
As regards the condition of undergoing ambulatory treatment, one of the interviewees 4 indicated that the offender does not have a say in how often s/he needs to visit the clinic, for this is decided by the institution and the person who will treat the offender (e.g. the doctor or psychiatrist). S/he is, however, involved in another way: they take part in the so-called ‘three-party-agreement’, which states amongst other things what is expected of the healthcare institution and the probation officer. This agreement is a standardised one, but if all parties agree that the special circumstances of the case necessitate a change of the agreement, this is possible. The offender is also able to suggest certain changes. Ultimately, all parties have to sign the agreement. The offender’s signature implies that s/he consents to the agreement. Yet again, it should be noted that the parties do not stand on equal footing: the offender does not really have a choice, since the conditionally imposed sentence will be executed if s/he does not comply with the imposed conditions. All in all, the offender is involved in the determination of the exact content of the special condition of ambulatory treatment, although this involvement has its limits. Dutch practice in this regard is thus in line with Rules 34, 58 and 76 ERCSM and Rule 6 ERProb. 5
However, the interviews show that when it comes to the special condition of the duty to report to a probation institution, the offender cannot really be involved in decisions about its exact content. After all, the Probation Service works with specific levels of supervision, which determine how often the offender needs to report. 6 The appropriate level of supervision is indicated by the RISc, which is a tool for measuring the risk of reoffending. 7 The picture of the Danish situation in this respect – as painted by Johnsen and Storgaard (2014: 247) – is very similar: there, the offender also does not have a say in the frequency of meetings. Returning to the Dutch situation, offenders are – to a limited extent – involved in determining the times at which they need to report. Three probation officers indicated that they aim to take into account – as much as possible – the fact that the offender, for instance, has a job and thus cannot report between 9:00 a.m. and 5:00 p.m. An overall assessment of the special condition of reporting to a probation institution leads to the conclusion that Dutch practice in this regard is not entirely in line with the abovementioned European rules, considering the fact that the offender does not have a say in the frequency of meetings. However, it can be argued that it is understandable that how often an offender needs to report depends on the risk s/he poses to society so the required frequency no room for their own input in this respect: here, safety concerns prevail, leaving. This (constant) tension between safety concerns and the strive for offender involvement is not addressed explicitly in the ERCSM and the ERProb. It would add to the European rules’ value if they would do so.
Familiarity with the European and Dutch rules
Remarkably, although the interviews showed that involving offenders in decision-making is generally part of probation officers’ day-to-day practice, none of the interviewees were familiar with the ERCSM and the ERProb. Frequently-heard answers to the question whether they had heard of the European rules and if so, if they knew what these entail, were: ‘I have absolutely no idea’ or ‘absolutely not’. One of the interviewees even indicated that she could not care less about the existence of the European rules. Two of the interviewees indicated that they had heard about the European rules, but that they had no clue of their exact content. However, after we had explained what the rules entail, eight of the respondents 8 indicated that they thought it was a good thing that there are European minimum rules on this subject. The probation officers who were less positive about the European rules had several reasons for this. One probation officer stated that she does not have the time to look into the European rules. She already has her own ‘guidelines, norms and values and rules stemming from the [Probation Service’s] headquarters’. The other two probation officers found that the rules put too much emphasis on the offender.
The fact that none of the interviewed probation officers was familiar with the ERCSM and the ERProb is problematic in light of the aspiration of both instruments to be known amongst probation workers. For instance, the introduction to the ERProb states that it is recommended that the member states ‘ensure that this recommendation [i.e. the ERProb] and the accompanying commentary are translated and disseminated as widely as possible and more specifically among judicial authorities, probation agencies, penitentiary services (…)’. Moreover, the ERCSM (p. 2) state that one of their aims is ‘to propose clear rules of conduct to staff responsible for the implementation of community sanctions and measures (…)’. However, since none of the interviewees turned out to be familiar with the ERCSM or the ERProb, it is questionable to what extent this aim of the European rules is achieved in practice.
Moreover, none of the interviewees 9 indicated that they knew any specific Dutch rules on the offender’s involvement. Three probation officers stated that they assumed that there would be internal guidelines of the probation service on this subject, but none of them was able to describe any specific rules. All things considered, the interviewed probation officers’ knowledge of the European and Dutch legal framework on offender involvement is deficient.
Conclusion
The research question that this article aimed to answer was: to what extent do Dutch legislation and practice concerning offenders’ involvement in decisions regarding the imposed sanctions, measures and conditions, taken in the stage of implementation, correspond with the ERCSM and ERProb? In order to answer this question, first the relevant European rules were considered.
After this, it was examined to what extent Dutch legislation dealing with the conditional conviction is in line with these rules. There turned out to be little Dutch legislation on offender involvement in the stage of implementation, and to the extent that offender involvement is prescribed, this is done only in the explanation to a governmental decree and on the website of the Dutch probation service. Content-wise, however, the Dutch legal system is in line with the European rules. Nevertheless, it would be recommendable if the offender’s involvement would be required by formal legislation as well. At a minimum it should be prescribed by the governmental decree itself.
Finally, this article discussed the extent to which Dutch practice corresponds with the European rules dealing with offender involvement in the stage of implementation. Dutch practice in this regard turned out to be remarkably in line with the European rules, despite the fact that none of the interviewed probation officers was familiar with them. An explanation for the fact that Dutch practice is in line with the ERCSM and the ERProb without probation officers being familiar with them could be that these rules have been developed a posteriori: the practices of the Member States’ probation services may have inspired the rules instead of the other way around. As for the Netherlands, this line of thought is probable, since Dutch experts were involved in the preparation of the ERProb, such as Professor Van Kalmthout (Commentary to Draft Recommendation CM/Rec (2010)1). The fact that the findings of the authors in the special issue of the European Journal of Probation are similar to the findings of this article further confirm this speculation: if the national practices would have diverged substantially, they could not have inspired these two coherent sets of rules.
As mentioned above, many Dutch probation officers are not familiar with the ERCSM and the ERProb. Although one could argue that it is more important that a country’s probation practice is in accordance with (the spirit of) the rules, practitioners’ familiarity with the legal framework is important as well. After all, without this the rules cannot achieve their goal of guiding probation institutions. Moreover, despite the finding that Dutch practice is very much in line with the European rules, there is still some room for improvement. Knowledge of what the ERCSM and the ERProb prescribe can be valuable in this regard, as this can highlight the (small) discrepancies between the situation as it is now and as it ideally should be. Also, probation officers’ familiarity with the rules could function as an extra safeguard to secure the strive for offenders’ involvement. Thus, it would be desirable if the ERCSM and the ERProb would be promoted (more) amongst practitioners. In this regard, one could make a distinction between countries in which probation practice is already highly consistent with the European rules – such as the Netherlands – and countries where there is still a lot to gain. In the former category, the focus could be on fixing the shortcomings (however small) regarding the offender’s involvement. In the latter category, one needs to ensure that there is a basis for offender involvement in place (for instance, whether probation officers are fully aware of its importance); later, one could focus on fine-tuning the specifics of the offender’s involvement.
It is important to remember that the abovementioned conclusions regarding Dutch practice should be considered merely as a ‘first impression’, taking into account the limited number of interviews. It is therefore recommended to conduct a more extensive research on Dutch practice when it comes to offender involvement in decisions regarding sanctions, measures and conditions, as Weaver and Barry (2014: 282) have done with regard to England and Wales. Moreover, it would be valuable to interview not only probation officers, but offenders as well. Both the article by Hughes (2011) and Weaver and Barry (2014) prove that adding this perspective leads to thought-provoking insights.
Footnotes
Acknowledgements
The authors would like to thank their supervisor Professor Dr MM Boone for her guidance and valuable advice while conducting the research project and writing this article.
Funding
This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.