The fact that a practice exists does not automatically imply that it is, or can be, consistently justified in its given form (even if this may have been the case in the past). The practice of punishment, it has been argued, is a morally problematic practice and therefore needs a consistent (moral) justification. The present study explored the justification of the Dutch practice of punishment from one particular perspective. The aim of the study was to determine whether or not a consistent legitimising framework, either founded in or derived from moral legal theory, underlies the institution and practice of legal punishment in the Netherlands.

In order to investigate the link between moral theory of punishment and the practice of punishment the first step was to explore whether concepts derived from moral legal theory have a meaning for criminal justice officials. Furthermore, it was necessary to explore how these concepts, as utilised by judges, interrelate. The gamut of perspectives concerning the justification and goals of punishment was narrowed down to three main categories: Retributivism, Utilitarianism and Restorative Justice. Retributivist theories are retrospective in orientation. The general justification for retributive punishment is found in a disturbed moral balance in society; a balance that was upset by a past criminal act. Infliction of suffering proportional to the harm done and the culpability of the offender (desert) is supposed to have an inherent moral value and to restore that balance.

Utilitarian theories are forward-looking. Legal punishment provides beneficial effects (utility) for the future that are supposed to outweigh the suffering inflicted on offenders. This utility may be achieved, through punishment, by individual and general deterrence, incapacitation, rehabilitation and resocialisation, and the affirmation of norms. Restorative justice emphasises the importance of conflict-resolution through the restitution of wrongs and losses by the offender. The victim of a crime and the harm suffered play a central role in restorative justice. The main objective is to repair or compensate the harm caused by the offence.

The central concepts of these three approaches to legal punishment were systematically operationalised as a pool of attitude statements to enable the measurement and modelling of penal attitudes. As a result of two extensive studies involving Dutch law students, this measurement instrument was refined, replicated, and validated. Based on the results of the second study with law students, a theoretically integrated (structural) model of penal attitudes was formulated. Following the two studies with law students, data were collected from judges in Dutch courts. Almost half of all judges working full-time in the criminal law divisions of the district courts and the courts of appeal cooperated with the study. Analyses revealed a number of interesting findings.

In the past it had been asserted that there is much conceptual confusion among Dutch judges as to the meaning of various goals and functions of punishment (cf. Chapter 3). In contrast, the present study shows that the relevant concepts are consistently measurable and meaningful for Dutch judges. In both student samples as well as in the judges’ sample Deterrence, Incapacitation, Rehabilitation (Utilitarian concepts) and Desert and restoring the Moral Balance (Retributive concepts) could be represented by five separate, internally consistent scales. The approach of Restorative Justice could be empirically represented by a single homogeneous attitude scale in all three samples. As such, unlike Retributivism and Utilitarianism, Restorative Justice was the only approach that was reflected by a single dimension and thus appears to offer a more integrated account of punishment than the other approaches. To our knowledge (see literature review in Chapter 3) this is the first study to have successfully operationalised Restorative Justice and to position it empirically amongst the more traditional approaches to criminal justice. It was, however, the factor least supported by judges. An examination of the theoretically integrated model of penal attitudes amongst judges confirmed earlier findings with law students: in three different samples, the two student samples and the sample of judges, (basically) the same structure in penal attitudes was found. Further analyses revealed that instead of mirroring any particular approach or theoretical framework exclusively, the overall structure of Dutch judges’ penal attitudes reflects a streamlined and pragmatic approach to punishment. Two clusters of substantially correlated concepts were identified in judges’ attitudes. These included Deterrence, Incapacitation, Desert, and restoring the Moral Balance on the one hand and Rehabilitation and Restorative Justice on the other. The first set includes concepts generally associated with punitiveness, or, rather, harsh treatment of offenders. The second set involves socially constructive aspects of the reaction to offending. Rehabilitation involves socially constructive aspects of the offender and his position in society, while Restorative Justice is concerned with socially constructive aspects of the victim’s position and the relationship between victim and offender. The fact that Restorative Justice and Rehabilitation turned out to be strongly correlated may seem awkward from a theoretical point of view. After all, an important impetus for the development of the Restorative Justice approach has been a high degree of dissatisfaction with the existing retributive and utilitarian approaches. Two explanations come to mind. First, there is an inclination in the Netherlands to regard restorative aspects as means of helping to bring about behavioural changes in offenders. Second, the Restorative Justice paradigm does not disqualify rehabilitation and resocialisation of offenders. Though not the primary objective, resocialising effects of a restorative intervention are regarded as probable and desirable spin-offs (e.g., Bazemore & Maloney, 1994; Walgrave, 1994; Weitekamp, 1992). In penal practice both views may therefore be regarded as complementary.

Moreover, this empirical finding can be taken as an illustration of how an alternative paradigm (like Restorative Justice) may become incorporated in or perhaps even corrupted by the existing criminal justice system, thus losing its identity as a true alternative paradigm (cf. Levrant, Cullen, Fulton, & Wozniak, 1999). This finding may also lead one to ponder on opportunities for a theoretical integration of Restorative Justice and the utilitarian view of Rehabilitation. However, both views share an important weakness that cannot be resolved by integration. This is the lack of a limiting and guiding negative principle, since both views are quite indifferent to the (unintended) punitive effects of an intervention. Furthermore, since rehabilitation is a likely and beneficial spin-off of restorative actions (perhaps even more so than interventions explicitly aimed at rehabilitation), little is to be gained from such integration. A final note on the association between Restorative Justice and Rehabilitation in the minds of Dutch magistrates relates to our operationalisation of Restorative Justice.

For the purpose of this study we concentrated on a modest (i.e., immanent; see Chapter 2), less radical version of Restorative Justice. A radical version would, with the current group of respondents, presumably have led to Restorative Justice being represented by a dimension much isolated from the other concepts in the study.

In essence, results showed the complex of penal attitudes to be dominated by two straightforward perspectives: harsh treatment (incorporating Deterrence, Incapacitation, Desert, and Moral Balance) and social constructiveness (incorporating Restorative Justice and Rehabilitation). Thus, in terms of general, case-independent penal attitudes, Dutch judges appear not to feel constrained by theoretical incompatibilities or boundaries. One might expect the general perspectives of harsh treatment and social constructiveness to be conflicting. However, these two ‘down to earth’ attitudinal perspectives were found to be uncorrelated. Given this pragmatic general structure of penal attitudes, no systematic and consistent approach or direction is implied regarding the justification and goals of punishment in sentencing practice. Instead, particular characteristics of offence and offender are more likely to determine the value attached to specific goals and justifications of punishment in each and every case. The pragmatic approach that was revealed can be interpreted as an attitudinal structure that reflects or facilitates the strong desire in Dutch sentencing practice to individualise sentences, i.e., to tailor a sentence to the unique aspects and circumstances of specific cases and individual offenders (cf. Chapter 5). We will return to this point shortly.

A limited number of judges’ background characteristics were available for a closer look at judges’ penal attitudes (i.e., court of appointment, age, gender, function within criminal law division of the court, experience in criminal law division, and previous occupation). Gender and years of experience in the criminal law division appeared to be the only characteristics substantially related to individual penal attitudes. Preferences for ‘harsh treatment’ increase with years of experience while, at the same time, support for ‘social construction’ drops. Furthermore, female judges tend to be less favourable towards Incapacitation, Deterrence, and Desert than their male counterparts.

In order to acquire an overall and well-founded impression regarding the link between supposed purposes and justifications of punishment and the actual practice of punishment, it is not sufficient simply to measure and analyse abstract penal attitudes. A necessary further step is to examine the goals that judges pursue in specific criminal cases. In short, the two aspects of interest are abstract notions of punishment on the one hand, and ‘punishment in action’ on the other. Punishment in action was examined by means of a scenario study. This involved presenting judges with four criminal cases (robbery cases) and examining the differences in preferences for goals of punishment and sentencing decisions. The cases employed in the scenario study were based on a selection from a large database of real cases that were heard by criminal courts in the Netherlands. The four cases that were presented to judges differed from one another in terms of the incorporation of pointers (i.e., bits of information) that were expected to evoke preferences for different goals of punishment. As such a ‘balanced vignette’ (equal pointers for deterrence, incapacitation, desert, rehabilitation, and reparation), a ‘harsh treatment vignette’ (dominated by pointers for deterrence, incapacitation, and desert), a ‘rehabilitation vignette’ (dominated by pointers for rehabilitation) and a ‘reparation vignette’ (dominated by pointers for reparation) were created (cf. Chapter 7). The study further aimed to determine whether or not substantial and consistent patterns of association exist between goals and sentences and also the relevance of abstract penal attitudes for pursuing particular goals of punishment in specific cases. Thus, for selected cases, the study was tailored to explore the consistency and relevance of sentencing goals in the light of sentencing decisions rather than to explain sentencing decisions. The scenario study explicitly focused on judges’ penal attitudes and preferences for goals of punishment while, through the experimental nature of the design, controlling as many other factors as possible. A major strength of such a design, in which the same cases are presented to all judges in the study is that, given a particular case, any differences found between judges’ evaluations cannot be attributed to differences in specific case characteristics.

The scenario study showed that, within the same criminal cases, judges’ preferences for goals of punishment varied substantially. Apparently, there is no commonly shared vision among Dutch judges in relation to the goals of punishment that apply in specific cases (at least not with the goals that we have focused upon). A partial exception was the harsh treatment vignette, the most serious case in the scenario study, in which the majority of judges agreed about the relative low level of importance of rehabilitation and reparation as goals of punishment.

The study also showed that judges’ sentencing decisions varied widely in the same criminal cases. Moreover, it was shown that different types of criminal cases with different types of offenders elicit different types of variation in sentencing. In the most serious robbery case in the study (i.e., the harsh treatment vignette) the offender and offence characteristics showed few opportunities for rehabilitation and reparation, as reflected in judges’ preferences for the goals of punishment. While there was little variation among judges in choice of principal punishment (i.e. unconditional prison term), as well as in the choice of special conditions, variation in sentencing in this case manifested itself predominantly in terms of severity, that is, length of the prison term. In the three other vignettes, where opportunities (pointers) for rehabilitation and/or reparation were present, the variation in sentencing decisions was more complex. This was due mainly to variations in choice of principal punishments as well as variations in the use of special conditions with suspended sentences.

While the judges evaluated the cases from the scenario study individually, in practice serious cases are tried by panels of three judges (cf. Chapter 5). In deliberations in chambers, such panels have to reach agreement amongst themselves on the sentence to be passed. To relieve the caseload of panels of judges in the Netherlands, it has been suggested that the competence of police judges (unus iudex) should be increased from six to twelve months imprisonment (cf. Tweede Kamer der Staten Generaal, 1998; Van der Horst, 1993). The wide variation in sentencing decisions among individual judges found in this study raises a cautionary note when considering such a change in the system. Before implementing such a change, the effect on sentencing disparity of trying more serious cases by judges sitting alone should be considered very seriously. The mitigating effects of consensus as a result of the deliberations by panels of judges should not be undervalued.[i]

The relationship between preferred goals of punishment and sentencing decisions in the scenario study was examined in order to determine whether or not the variation in both sets of variables was linked in a consistent and substantial manner. Even though, with respect to the same cases, judges may differ amongst themselves, both in terms of their preferred goals of punishment as well as in their sentencing decisions, it is still possible for goals and sentences to be related in a consistent and meaningful way. Overall, results show that preferences for goals of punishment were not very relevant for choosing a particular sanction, nor were sentencing decisions consistently rationalised by goals of punishment. As might be expected, however, the harsh treatment vignette constituted an exception. In this case at best 18 percent of the variance in sentencing could be accounted for by variance in goal preferences. The two sets of variables were clearly associated along the lines of harsh treatment versus social constructiveness.

Regarding the relationship between personal, case-independent, penal attitudes and preferred goals at sentencing, penal attitudes were expected to be of relevance only when pointers for the range of goals of punishment are equally present in a particular case. In the balanced vignette (i.e. balanced in terms of pointers for the range of goals), penal attitudes were expected to act as tiebreakers, whereas their role was expected to be irrelevant in the other vignettes. Results of the study show judges’ penal attitudes not to be relevant for preferred goals at sentencing in any of the four cases in the scenario study.

Thus, the current study went looking for a clear and consistent link between justifications and goals of punishment derived from moral legal theory on the one hand, and the practice of punishment on the other.

Such a link could not be established. The argument was put forward that if there is a consistent legitimising moral framework underlying the current practice of punishment, this should somehow be reflected by that practice. This argument has been explored from several points of view. The overall structure in general penal attitudes reveals a pragmatic inclination that is insufficient to serve as a consistent and legitimising (moral) framework. In specific criminal cases there was no agreement on the goals of punishment to be aimed for. Sentences in the same criminal cases differed widely and no substantial and consistent patterns of association between goals and sentences were found. Perhaps there are other mechanisms or processes, apart from those derived from moral legal perspectives that may provide sufficient justification and guidance for the practice of punishment. From the perspective adopted in this study, however, it seems safe to conclude that there is no consistent legitimising and guiding moral framework underlying the current practice of punishment.

While individualisation is valued in Dutch sentencing practice and judges may aim to individualise their sentences as much as possible, the scenario study has shown that individualisation can, depending on the sentencing judge, imply a wide variety of sentences in terms of type, severity, and special conditions for exactly the same criminal case. In the light of these findings, individualisation has, in fact, two components: a judgecomponent and a case characteristics-component.[ii] While individualisation in sentencing may be a highly valued principle in the Dutch practice of punishment, it obviously has a number of potential drawbacks. The wish to individualise sentences may, for example, be in direct conflict with the principle of equality in sentencing. Concerns about equality in sentencing have increased in the Netherlands over the last decade and have led to various initiatives to enhance consistency in sentencing. Initiatives for attaining a greater level of consistency in sentencing include structured deliberations between chairpersons of the criminal law divisions of the courts, attempts to formulate ‘band widths’ or ‘starting points’ for sentencing in certain types of cases, and the development of and experimentation with computer-supported decision systems and computerised databases (e.g., Oskamp, 1998). Without a commonly shared underlying moral framework or vision of punishment, the (strict) application of such essentially inanimate mechanisms may eventually lead to a bureaucratic equality in sentencing (cf. Kelk, 1992; Kelk & Silvis, 1992) in which the moral justification and goals of punishment are pushed still further into obscurity.[iii]

Moreover, and perhaps paradoxically, in the absence of a commonly shared vision on the justification and goals of punishment, it remains questionable whether or not such mechanisms will ever be accepted or consistently applied by sentencing judges (De Keijser, 1999). Perhaps cases similar to the harsh treatment vignette (i.e. few opportunities for rehabilitation/ reparation), where there was some level of consensus about the goals of punishment and appropriate type of sentence, will be the most amenable to the use of such mechanisms.

The present study constitutes an appreciable simplification of the complex and dynamic process of sentencing in real life court cases. By choosing such an approach, however, the extreme dependence of judges on external influences and mechanisms has been shown. A commonly shared vision underlying criminal justice on fundamental moral principles and their practical implications may constitute a first line of defence against extra-judicial influences, such as short-term criminal politics (e.g., passed on through the public prosecutor), and media hypes that may be considered undesirable. An intricate and at heart morally problematic institution such as legal punishment, that cannot fall back on and does not reflect a coherent underlying vision, will, in the long run, forfeit its credibility. On the part of policymakers, the necessity of normative and theoretical reflection already seems to become irrelevant or is even viewed as an obstacle (cf. ’t Hart, 1997). The essence of the practice of punishment is being reduced to or reformed into technocratic rationalisations primarily based on considerations for manageability, control (Van Swaaningen, 1999; Kelk, 1994; Feeley & Simon, 1992), and instrumentality (Foqué & ‘t Hart, 1990; Schuyt, 1985). One may legitimately wonder whether actions within such a practice can or should, in the long run, still be called ‘punishment’.

The fact that we have not been able to establish a clear and consistent link between justifications and goals of punishment derived from moral theories and the practice of sentencing, may be attributed to a number of causes. If one accepts the basic premise of this study, namely that punishment is morally problematic and therefore needs a consistent and practically relevant moral justification, the present results should at least lead one to reconsider and discuss the justification and goals of punishment and the way in which they relate to our contemporary practice. One argument may be that the theories of utilitarianism, retributivism, and restorative justice are in themselves plainly too awkward for practical purposes, i.e., to provide a clear and practically relevant legitimising and guiding framework for the contemporary practice of sentencing. Therefore, the gap between these legitimising theories of punishment and the actual practice cannot be bridged. Theoretical compromises, i.e. hybrid theories, will not effectively solve the problem. Hybrid theories, it has been argued, can very well disguise eclecticism in sentencing practice (cf. Chapter 2). A second argument takes the opposite point of view, i.e., that the practice of sentencing, conceived as an essentially morally problematic practice, is defective: it is a practice in which a coherent vision on the moral foundations of punishment and the goals at sentencing is absent. While individual judges may have their own idiosyncratic models of the relationship between goals of punishment and specific sanctions, such a relationship is hard to discern at the aggregate level. These arguments are not mutually exclusive. Moreover, either way, a defective link between moral theory and the practice of legal punishment, as observed in this study, remains. This suggests, at least, two general and simultaneous courses of action.

First, the necessity of serious and fundamental theoretical reflection is evident. In this respect, it is striking that in the Netherlands the theoretical debate appears to have died out. To date, relatively few lawyers and scholars appear to attach great value to moral theorising. An important course of action would therefore be to revive the theoretical debate, not just for the sake of theorising, but rather for the sake of repairing the moral foundations of legal punishment with clear implications for sentencing practice.

A second and related course of action would be to put serious effort into reaching a consensus and to make the link between (theoretically derived) goals of punishment and actual sentences explicit. Such deliberations should not simply include principal punishments, but the whole array of sentencing options that are currently available to judges. This requires serious reflection and, more importantly, would imply making certain commitments that may not be popular from a political perspective. While mixing cocktails consisting of a multitude of frequently conflicting goals may be smart from a (short-term) political point of view, it renders sentencing practice impalpable and difficult to legitimise. Rather than conceiving of such processes as attempts to limit judges’ discretion in sentencing, they may eventually help to avoid more serious constraints on sentencing discretion through bureaucratic mechanisms. Currently, in the Netherlands, the unduly complex and fragmented nature of our sanctions system is being scrutinized. The Department of Justice has recently suggested a number of ways to streamline the system (cf. Department of Justice, 2000; see also Justitiële Verkenningen, 2000). Incorporating explicit and well-considered notions of the link between punishment and purpose in such a process of streamlining is an opportunity for real improvement that should not be missed (cf. Van Kalmthout, 2000; see also De Jong, 2000).

These courses of action should constitute the first steps towards a sentencing practice that is less impalpable and more coherent. Simultaneously they may stimulate a search for other methods of promoting disciplined conduct and social control (cf. Garland, 1990). As such, they may fuel a process of decremental change (Braithwaite & Pettit, 1990) in the reach and workings of the current criminal justice system. Obviously the debates should not be limited to the judiciary but must also be extended to the legislator and the government.[iv] One of the great challenges is to establish common ground for such debates. After all, political and philosophical reflection can often be difficult to reconcile (’t Hart & Foqué, 1997). The readiness of criminal justice officials, government, and the legislature to address these issues will depend on an acknowledgement that the current state of affairs is unsatisfactory. It will also depend on the belief in the potential to improve the current state of affairs and, subsequently, on the actual willingness to act on these beliefs (cf. Likert & Lippitt, 1966; see also Denkers, 1975). This study may contribute to the acknowledgement of this fundamental moral problem in contemporary criminal justice.

Powerful tools that can contribute to the process of improving the current state of affairs are readily at hand. Structured deliberations between chairpersons of the criminal law divisions of the courts, a council for the administration of justice, attempts to establish ‘band widths’ or ‘starting points’ for sentencing in certain types of cases, and the development of and experimentation with computer-supported decision systems and computerised databases have been focussed on attaining greater levels of consistency in sentencing. Consistency in sentencing does not necessarily solve the moral problems at stake. Moreover, without a commonly shared vision of the justification and goals of punishment and the way they should relate to actual sentences, the effectiveness of such initiatives is questionable. However, these initiatives are the tools par excellence for making differences explicit (in terms of goals and motivations as well as in terms of sentences) and for forming a body of knowledge on which a common vision can start to take shape.

NOTES
i. For further objections, see Doorenbos (1999) and Corstens (1999).
ii. Recently, after an examination of sentencing disparity in the British House of Lords, Robertson (1998) also stressed the highly personal nature of judicial decision-making. By identifying which judges tried the case, he has been able to correctly predict the outcome of appeal cases more than 90 percent of the time. His study, however, focused on differences between judges on other types of dimensions than the penal attitudes employed in this study.
iii. For instance, the formulation of ‘band widths’ or ‘starting points’ in sentencing for certain types of cases is predominantly founded upon averages of sentences passed in similar cases.
iv. Concerning the specific maxima (i.e. per individual offence) of principal punishments in Dutch criminal law, such a fundamental reflection on part of the legislator was recently recommended by De Hullu et al. Normative standards that (ought to) underpin legislative choices and decisions need to be developed and made explicit (De Hullu, Koopmans, & De Roos, 1999).

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Vegter, P. C. (1997). Tekst en commentaar strafvordering. In C. P. M. Cleiren & J. F. Nijboer (Eds.). Denter: Kluwer.
Verwoerd, J. R. A. (1986). Op zoek naar de ‘juiste’ strafmaat. Tijdschrift voor Criminologie, 28, 111–127.
Von Hirsch, A. (1976). Doing justice: The choice of punishments. New York: Hill and Wang.
Von Hirsch, A. (1992a). Proportionality in the philosophy of punishment, Crime and justice: A review of research (Vol. 16, pp. 55–98). Chicago: Chicago University Press.
Von Hirsch, A. (1992b). Rehabilitation. In A. V. Hirsch & A. Ashworth (Eds.), Principled sentencing (pp. 1–6). Edinburgh: Edinburgh University Press.
Von Hirsch, A. (1993). Censure and sanctions. Oxford: Oxford University Press.
Vranken, J. B. M. (1978). Kritiek en methode in de rechtsvinding. Deventer: Kluwer.
Walgrave, L. (1994). Beyond Rehabilitation: In search of a constructive alternative in the judicial response to juvenile crime. European Journal on Criminal Policy and Research, 2, 57–75.
Walgrave, L. (1996). Over ‘reintegrative shaming’ en ‘restorative justice’: Een pleidooi voor klaarheid in terminologie en in theorie. Tijdschrift voor Criminologie, 4, 346–359.
Walgrave, L., & Geudens, H. (1996). The restorative proportionality of community service for juveniles. European Journal of Crime, Criminal Law and Criminal Justice, 4, 361–380.
Walker, N. (1985). Sentencing: Theory, law and practice. London: Butterworths.
Walker, N. (1991). Why punish? Oxford: Oxford University Press.
Weitekamp, E. (1992). Reparative justice: Towards a victim oriented system. European Journal on Criminal Policy and Research, 1, 71–93.
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Wright, M. (1991). Justice for victims and offenders. Philadelphia: Open University Press.

 

Appendix 1. Vignettes

The boldface vignettes in Table A1.1 are included in this appendix

Table A1.1

A1. Robbery at a cash dispenser: balanced
Late in the evening, a man is taking money from a cash dispenser in the hall of a bank when he is suddenly grabbed and punched in the face. He sees before him a man with a black nylon stocking on his head and a gun in his hand. The offender tells the victim to take NLG 1,000 from the cash dispenser for him, otherwise he will shoot. The victim panics, and starts to shout and hit out wildly. This causes the offender, Johannes Cornelis Vrugink, such consternation that he takes from the machine the NLG 150 that the victim had already requested and runs away. In all the commotion he forgets to remove the nylon stocking from his head.

One street away, two police officers on their beat stop Vrugink, who is still wearing the stocking on his head. When Vrugink tries to run away, the officers grab hold of him and then search him. In his pocket the officers find a toy gun, which has been painted black, and NLG 150. Vrugink is taken back to the station and questioned. At first Vrugink denies any wrongdoing. Soon after the arrest, however, the victim arrives to report the offence. When Vrugink is confronted with the information provided by the victim, he finally admits to the offence. The toy gun, the nylon stocking and the NLG 150 are seized. Vrugink is kept in custody for another three days and then released.

The victim is a 40-year-old man. He is married with two children. Immediately after the offence he went to the hospital’s casualty ward. His nose was found to be broken and he received treatment. His glasses, worth NLG 600, were destroyed by the punch. The victim says that being threatened by the (toy) gun has traumatised him. He was on sick leave for two months after the offence. Now he is still fearful, particularly out of doors. He has trouble sleeping and finds it very difficult to concentrate at work. The victim is not party to the action, but is present at the trial.

Nineteen-year-old Johannes Cornelis Vrugink is unmarried and at the time of the trial has been living with his girlfriend, also 19 years old, for several months. Vrugink previously lived from the age of 16 with his uncle, after running away from home because of continuing problems with his stepfather. After primary school, Vrugink attended but did not complete the LTS (junior technical school). He has had a number of jobs through an employment agency but kept leaving them because he found the work too dull, had difficulty getting up on time in the morning, and usually argued with his employers. Vrugink has trouble dealing with conflict situations. He says that out of boredom he ‘smokes a lot of dope’ and gambles regularly. These activities cost a great deal of money. There are no further indications of addiction to hard drugs. Vrugink committed the offence because of a chronic lack of funds and in order to have money to impress his friends. Vrugink was unemployed at the time of the offence. He receives income support and is following a professional driving course. He is in the process of setting up his own transport business, with the help of his employment agency.

Vrugink is present at the trial. When allowed a final word, he says that he wants to dedicate himself fully to making a success of his business and keeping on the straight and narrow so that he can lead a normal life with his girlfriend. He tells the victim that he deeply regrets his acts and wants to change his lifestyle.

The judicial documentation shows that when Vrugink was 18 years old he received a magistrate’s fine of NLG 200 for assault. At 17 years old, Vrugink spent two months in a youth custody centre for robbery. He has also been involved with the law in connection with vandalism and shoplifting. No sentences were passed in these cases.

B2. Robbery of a taxi driver: harsh treatment
Late in the evening, a taxi is parking in an empty taxi rank when suddenly a man wearing a balaclava on his head jumps into the car. The offender, Andreas Doncker, shows a gun and says that he will use it unless the driver hands over his wallet with the day’s takings. When the victim fails to react immediately, Doncker punches him in the face and says that it would be wise to do as he is told. The by now terrified driver hands over his wallet, containing over NLG 1,000. Doncker tells the driver to stay in his taxi for the next half-hour and not to drive anywhere. Doncker then jumps out of the taxi and runs away. As soon as Doncker is out of sight, the driver reports the offence to the police on his radio’s emergency channel. On the basis of the victim’s description of Doncker’s clothes, two officers apprehend Doncker in the street half an hour later. When Doncker tries to flee, the officers wrestle him to the ground. They search his clothes and find a loaded automatic gun, a wallet with over NLG 1,000 and a balaclava. Doncker is taken to the police station for questioning. Under questioning he admits to the offence. He says that he once bought the gun in Belgium for self-defence. The money, the balaclava and the automatic gun are seized. Doncker is held for another six days before being allowed home. The victim is a 42-year-old taxi driver. He is married with one child. The punch gave him a black eye. He was too scared to drive his taxi for three months after the offence. Now he is still fearful, especially out of doors, and he has trouble sleeping. The victim is not party to the action and is not present at the trial.

Twenty-seven-year-old Andreas Doncker is unmarried and has lived on his own since he was 17 years old. After primary education Doncker attended the MAVO (school for lower general secondary education), but left without completing his schooling there. He then attempted a number of months at the LTS (junior technical school), but gave up on that too. He has had short spells of employment with various cleaning firms, but these never lasted long. Doncker is long-term unemployed and receives income support, most of which is spent on going out and smoking marihuana.

When he goes out he ‘easily’ drinks 25 glasses of beer and spends the whole of the next day in bed. There is no question of hard drugs use. Doncker says that he committed the offence because of lack of money. His income support was not sufficient to maintain his lifestyle. When allowed a final word in the trial, he says that he is sorry and that he does not know what else to say.

Doncker’s judicial documentation shows that as a minor he was involved with the law on a number of occasions for various theft cases. When he was 16 he also spent four months in a youth custody centre for robbery. When he was 22 the magistrate sentenced him by default to three months in jail for aggravated theft. He served this sentence. Since then he has been involved with the law in connection with other theft and assault cases. No sentences were passed in these cases.

C3. Robbery at a cafeteria: rehabilitation
Late in the evening, when the last customer has left, the owner of a cafeteria is just about to close his shop when a young man walks in. Before the owner can say that the cafeteria is closed, the young man gives him a hard shove. This causes the owner to fall to the ground. The offender, MariusDiepenveen, warns the victim not to get up. Diepenveen quickly opens the till, takes out NLG 250 and runs out of the cafeteria.

The driver of a taxi parked nearby sees Diepenveen run out of the cafeteria and goes inside to investigate. He finds the victim, who tells him what has happened. Together they drive to the police station to report the offence. The taxi driver believes that he has recognised Diepenveen because two days earlier he had picked him up in his taxi in a drunken state and driven him home.

A patrol car is sent to Diepenveen’s flat, following the taxi driver’s directions. After a while Diepenveen arrives. The officers stop him and ask what he has been doing that evening. When Diepenveen tries to run away, he is arrested and taken to the police station. Diepenveen is found to be drunk. He is questioned the following morning after sleeping off the alcohol in a cell. At first Diepenveen maintains that he has done nothing wrong. He only admits to the offence when the officers propose a confrontation with the victim. Diepenveen says that he used part of the NLG 250 to pay off a debt owed to an acquaintance from the pub. He does not know the name of this acquaintance. He spent the rest of the money that evening on drinking and gambling with his friends. He had already drunk 10 glasses of beer when he committed the offence. Diepenveen is charged and then released.

The victim is the 47-year-old owner of a cafeteria. He is unmarried, and lives with his girlfriend and her child. While reporting the offence at the police station he complained of shooting pains in his lower arm. Diepenveen’s shove had caused him to fall badly. After giving his statement he was taken to hospital. His wrist was found to be broken and he was allowed home that evening with his wrist in plaster. The victim is not present at the trial and is not party to the action.

Nineteen-year-old Marius Diepenveen is unmarried and lives alone. He has a steady girlfriend, whom he sees on average three times a week. He is unemployed and receives income support. At the time of the offence he was going out nearly every evening. Most of his income support is spent on drinking and gambling. Diepenveen says that he committed the offence because an ’acquaintance’ from his nightlife to whom he owed money was pressurising him and because he had no money for going out.

A probation report provides the following information. Diepenveen is an only child. When he was nine years old, his mother was killed in a road accident. Until he was 17 he lived with his father, a truck driver, who was hardly ever home. When his father was at home, the two would usually argue and Diepenveen would be beaten by his father. The situation became untenable when Diepenveen turned 17, and he went to live on his own. He has had no contact with his father since. The highest educational qualification that Diepenveen attained is primary education. He spent a couple of years at the LTS (junior technical school), but often played truant and did not complete his schooling there.

Diepenveen’s incomplete schooling and unhappy family situation have caused his personal development to lag significantly behind that of his peers. He is a very impulsive spender and is quick to argue with anyone who disagrees with his point of view. He gambles more from boredom than from addiction. If he keeps drinking as much, however, he will risk alcohol addiction. Diepenveen does not use hard drugs.

The probation report finally indicates that Diepenveen’s unstructured and uninhibited lifestyle and his association with the wrong kind of friends are important factors in causing his behaviour to deviate. Diepenveen seems sincere when he says that he has had enough and wants to change. At the time of the offence Diepenveen had just started as a trainee plasterer with his uncle who is a building contractor. He says that he has finally found something he enjoys doing and that he is keen to complete his plastering training. When Diepenveen’s training is completed, his uncle will give him a job.

When Diepenveen is allowed a final word at the trial, he says that he is full of remorse for his act and shocked that his victim’s wrist was broken. He wants to work hard to earn his money honestly and to lead a normal life. When he has succeeded in that, he wants to move in with his girlfriend. Diepenveen has been involved with the law once before. When 18 years old, he was sentenced by the magistrate to a NLG 400 fine for a series of shoplifting offences.

D4. Robbery at a clothes shop: reparation
Late on a Friday evening, after late night shopping, the owner of a clothes shop is ready to leave his shop. After closing up, he has spent a couple of hours rearranging the shop window. When walking to the counter to pick up his keys and wallet, he hears someone behind him entering the shop. Before he can even turn around to say that the shop is closed, he is grabbed by the coat and thrown to the ground. The attacker, Frans Willem Paakes, kicks the shopkeeper in the chest as he lies on the ground and shouts some abuse at him. Paakes then takes the shopkeeper’s wallet, removes NLG 200 and leaves the shop. When he has recovered from the shock, the victim goes to hospital because his chest is very painful. Police officers come to the victim’s house in the morning to take his statement. He says that his ex-brother-in-law, Paakes, was the offender.

The officers go to Paakes’ house, following the victim’s directions. Paakes is found to be home and is taken to the station for questioning. Paakes admits to the offence and says he was planning to give himself up to the police that day. He tells the officers that the victim until recently had been in a relationship with his younger sister. Paakes never liked the victim. When the victim had thrown Paakes’ sister out on the street after a screaming row and had also broken some of her belongings, Paakes had been furious.

Paakes had drunk a great deal on the evening of the offence. When passing by his ex-brother-in-law’s shop he had entered on impulse and committed the offence. Paakes was allowed home after being charged. The victim is Paakes’ 26-year-old ex-brother-in-law. When Paakes threw him to the ground, his jacket, worth NLG 500, was irreparably torn. The kick to his chest broke one of his ribs and he had to spend six weeks at home recuperating. The victim is not party to the action, but is present at the trial.

Frans Willem Paakes is 29 years old. He is married and has a two-year-old daughter. After completing the LTS (junior technical school), Paakes was employed by an electrical contracting company. He has risen through the ranks over the years and now has a management position in the company. This gives Paakes and his family a good standard of living.

On the night of the offence, Paakes had drunk a great deal with a couple of friends. He tends to do this on Friday evenings. On the way home he passed by his ex-brother-in-law’s shop. At the trial Paakes says that he does not know what possessed him but in an impulsive fit of rage he attacked his victim. Paakes considers neither his drunkenness nor the fact that he has never liked his ex-brother-in-law to excuse his actions that night. When Paakes is allowed a final word, he says that he has always been very protective towards his younger sister but that this should never have happened. This is the first time that Paakes has been involved with the law.

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Appendix 2. Coding of sentences

Examples of three judges’ sentences in the balanced vignette

judge X: 18 months imprisonment of which 6 months conditional with an operational period of two years and probation supervision and damage compensation as special conditions.

judge Y: 140 hours of unpaid work instead of 3 months imprisonment. 2 months conditional imprisonment with an
operational period of 2 years. Special condition NLG 600,– damage compensation.

judge Z: 12 months imprisonment of which 3 months conditional with an operational period of 2 years and the measure of damage compensation.

Coding scheme for sentences (three judges’ sentences in the balanced vignette).

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Appendix 3. Rank orderings of goals of punishment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Appendix 4. Canonical correlation analysis in the scenario study

Canonical correlation analysis creates linear composites, called canonical variates, for each set of variables in such a way that the canonical variates representing each set are optimally correlated. The correlation between two canonical variates is called the canonical correlation coefficient (rc). The squared canonical correlation represents the overlapping variance of a pair of canonical variates. After the first pair of canonical variates has been calculated, the analysis proceeds with the calculation of the next pair of variates which are uncorrelated with the first. This procedure is continued until no more variance is left (cf. principal components analysis). As such, the canonical variates partition the association between the two sets of variables additively (Stevens, 1996). Only significant canonical correlations are interpreted (significance testing of canonical correlation coefficients is achieved through a residual test procedure resulting in the test statistic Bartlett’s V which is distributed as χ2). This is an important feature of the technique since it enables different patterns of association between different subsets from both types of variables to be analysed. While the first pair of canonical variates represents the most important (i.e., strongest) patterns of association between goals and sentence components, subsequent pairs of variates, if significant, may show meaningful complementary patterns of association between the two sets.

Canonical correlation analysis does not require the original variables in the two sets to be normally distributed, although the analysis is enhanced if they are (Tabachnick & Fidell, 1996; Thompson, 1984). For this reason, several models for each vignette are presented in which the original variables have been treated (i.e., coded) differently. Correlations between the original variables in a set and the canonical variate for that set are employed for interpretation. These are called ‘structure correlations’ (Tacq, 1992). The structure correlations should be greater than 0.30 to be considered for meaningful interpretation (Tabachnick & Fidell, 1996).

The analysis is symmetrical which means that the technique itself does not assume nor indicate causal relations between the variables. On theoretical grounds, however, it is not uncommon to include notions of causality in the interpretation. For this type of interpretation ‘redundancy’ is examined. Redundancy is defined as the variance that a canonical variate from one set extracts from the variables in the other set. Because the interest in our scenario study lies primarily in determining whether clear and consistent patterns of association exist between goals of punishment and sentencing decisions, conditional proposition 3 implies examining redundancy in both directions: ‘if preferred goals of punishment are rele vant for choosing a particular sentence or if a sentence is consistently rationalised by a preferred goal or combination of goals.’ The general model of canonical correlation analysis for the two sets of variables in the scenario study is shown in Figure A4.1.

The Guardian ~ Open Culture. Sometimes I’ll meet someone who mentions having written a book, and who then adds, “… well, an academic book, anyway,” as if that didn’t really count. True, academic books don’t tend to debut at the heights of the bestseller lists amid all the eating, praying, and loving, but sometimes lightning strikes; sometimes the subject of the author’s research happens to align with what the public believes they need to know. Other times, academic books succeed at a slower burn, and it takes readers generations to come around to the insights contained in them — a less favorable royalty situation for the long-dead writer, but at least they can take some satisfaction in the possibility.

The shortlist of these most important academic books of all time runs as follows (and you can read many of them free by following the links from our meta list of Free eBooks):

Amongst others:
Stephen Hawking ~ A Brief History of Time
Immanuel Kant ~ Critique of Pure Reason
Germaine Greer ~ The Female Eunuch
Niccolò Machiavelli ~ The Prince
Adam Smith ~ The Wealth of Nations

http://www.openculture.com/the-20-most-influential-academic-books

Climate change represents the greatest threat facing humankind. Yet, not only is very little being done to combat the climate change threat, but there are still vocal climate change deniers around us, some of whom are even running for the presidency of the United States. Moreover, there seems to be confusion about the most effective ways to combat climate change. The latest effort by global leaders to address the problem of climate change, as reflected in the Paris Agreement of late 2015, falls short of implementing the necessary steps to save the planet.

But this begs the question. What are the necessary steps that need to be taken to prevent a catastrophic climate change scenario? In this exclusive interview for Rozenberg Quarterly, world renowned economist and climate change authority Graciela Chichilnisky discusses the nature of the problem of climate change, highlights what is at stake, and argues cogently what should be done to save the planet.

Professor Chichilnisky, it is widely known that climate change can be caused by both natural variations and human activity. Is the climate change being observed today due to natural variations or are its causes to be found in human activities and greenhouse gas emissions?
Scientists all over the world are in agreement that the climate variations we observe today are due to a global change in climate, and that increased greenhouse gases in the atmosphere from human activity, particularly the burning of fossil fuels since 1945, are responsible for climate change. This is not a gentle warming trend, it is the melting of the North and the South poles, and a confirmed rising level of the oceans worldwide that will engulf large areas of the planet, and include 43 island nations states.

In the United States, virtually all leading Republican figures, including Donald Trump, who has already wrapped up the Republican nomination, argue that climate change is based in pseudo-science. What’s going in here? Are Republicans so out of touch with reality, or are they simply interested in protecting vested interests in the fossil fuel economy?
The Republican party is conservative by nature and resists change, even the acknowledgment of the need for change. This is a natural human response. Denial is known to be the first psychological response to a traumatic event, and climate change is potentially catastrophic. Denial is a natural first response and can take the form of denouncing climate science as pseudo-science. However understandable the reaction may be, we cannot remain mired in the first response to a traumatic event, and need action. It is now possible to take action as there are technologies that can remove the carbon that is already in the atmosphere in an affordable way, and this is needed now to avert catastrophic climate change. But it requires moving from the stages of denial and anger to the stage of acceptance. Then we can take action and create global policy as needed.

However, there are some scientists and former astronauts who claim that NASA’s studies of climate change, for example, are based in highly complex models which have proven highly inadequate in the last. Any comments on this?
Indeed, climate models are recent scientific developments and they are complex. This is true. Nobody can predict the weather exactly for example. But the scientific evidence for the overall climate change trend is now overwhelming accepted by most scientific bodies, including the IPCC which is the UN scientific body consisting of thousands of scientists from all over the world, and nobody debates that.

Can you briefly map the menace of climate change according to the most likely catastrophic scenario?
The melting of the North and the South Poles is already happening, and will raise the level of the oceans worldwide engulfing hundreds of millions of people who live in coastal zones and low areas, for example in Miami, Florida, in Shanghai, and in island states. According to the OECD this can cause trillions in economic losses. Hundreds of millions of people will migrate for survival. Mass migration will create political stress and social disorder or even wars, and major political and economic chaos, the beginning of which is already observed even in the EU and the US. We can expect extraordinary losses of life and suffering in developing nations. Western democracy as we know it is at stake.

You have been arguing for the implementation of Carbon-Negative Technologies to halt the course of catastrophic climate change. Briefly, how do these technologies work, and how widely do they need to be utilized? For example, will a handful of plants in each country around the world be sufficient to clean the air from carbon dioxide?
Carbon Negative Technology™ has been invented and is now proven. It is starting to be used commercially for removing CO2 from the atmosphere and selling it for economic uses, such as greenhouses, water desalination, building materials, beverages, bio-fertilizers, and plastics, as done by the award winning company Global Thermostat in Silicon Valley. (GT). Costs are now sufficiently low that removing CO2 and selling it as just explained, is a commercially viable proposition and can immobilize enough CO2 on earth to clean all the CO2 that humans put in the atmosphere, which is about 30 gigaton/year. A handful of these carbon negative plants in each nation will not suffice. On average, we need to build 200 carbon negative Global Thermostat plants per nation in the world. Global Thermostat’s carbon negative power plants can reduce the CO2 in the atmosphere while producing needed energy, therefore reversing the role of power plants from the worst emitters of CO2, to cleaners of the atmosphere. This will be a major transformation of the world economy

Is technology alone sufficient in bringing about the necessary changes in policymaking in order to combat climate change?
Technology alone does not suffice. We need policy changes implemented through the global body that is responsible for averting climate change, the UNFCCC. We had substantial successes but much more needs to be done. The UN global carbon market that I designed and wrote into the Kyoto Protocol and became international law in 2005, was a major step forward as it had mandatory emissions limits for the world’s worst emitters. Trading in this UN carbon market reached $175Bn/year in 2011 and provided sufficient funding through the Clean Development Mechanism (CDM) to developing nations to implement green technology such as photovoltaic power in China, and can do the same now for carbon negative technologies. The technology is here now and the funds are here to implement it if we persist with the appropriate UNFCCC policies. The 2015 Paris Agreement has appropriate goals but offers no implementation.

Is capitalism itself responsible for climate change?
China and Russia are some of the worst emitter nations in the world, and they are socialistic nations. At first sight therefore the response is no, capitalism is not responsible for climate change at the national level. However, the trading and the use of fossil fuels that is at the core of the climate change issue – more precisely, the international market itself – which is the same for capitalistic and socialistic nations, can be said to be a creature of international capitalism. This creature can be considered responsible for the overexploitation of petroleum and other natural resources, which are over-extracted in poor nations and overconsumed in rich nations. The expansion of international markets was fostered by the Bretton Woods institutions that were created in 1945 and were extremely successful in their task, globalizing the world economy. However, these institutions and their objectives that were fine then, have since then over-achieved, and are now at the core of the problem of overexploitation of global resources, including the atmosphere, bodies of water and biodiversity, on which human survival depends. We need to change this aspect of global capitalism. An institutional change is needed fast, and is definitely possible. It is at least as possible as was the creation of Bretton Woods themselves, and of the UN global carbon market This needs to be done right now.

Assuming you were in a position to advice the next president of the United States on policy issues around the environment and climate change, what specific recommendations would you make that could be quickly implemented in a fairly broken political system like the one that currently exists in the US?
Implement the carbon market in the US, and facilitate carbon negative technologies to help achieve reduced emissions and no economic cost and clean the atmosphere. That in itself suffices to precipitate a number of other needed changes

—
Graciela Chichilnisky is Professor of Economics and of Statistics at Columbia University, Visiting Professor of Economics at Stanford University, Founder and CEO of Global Thermostat, and the architect of the Kyoto Protocol Carbon Market.
See: www.chichilnisky.com

What this Dissertation is About

According to several recent publications, small states or microstates are comparatively more likely to have democratic systems of government than larger states (Diamond and Tsalik 1999; Anckar 2002b; Srebrnik 2004). Based on the data of aggregate indices of democracy such as Freedom House, these large-N quantitative analyses have disclosed a statistically significant negative correlation between population size and democracy. Although a satisfactory explanation of this pattern has not yet been found, the argument that a limited population size fosters good governance, republicanism, and democracy was already formulated by the ancient Greek philosophers, and is therefore one of the most ancient debates in political science. The finding that microstates from around the globe are exceptionally likely to develop and maintain democratic systems of government therefore appears to validate centuries-old theories about the political consequences of size. In addition, not only has the average population size of countries continuously been decreasing since the late 19th century (Lake and O’Mahony 2004), but more and more states have initiated programs of decentralization and devolution of powers and competences to smaller, sub-national units. This unmistakable trend towards smaller polities and administrations is buttressed by academic publications that emphasize the virtues and advantages of smallness (cf. Schumacher 1973; Katzenstein 1985; Weldon 2006).

Full text (PDF): https://openaccess.leidenuniv.nl/bitstream/Veenendaal.pdf