Consistency in sentencing decisions is an important hallmark of legitimacy in sentencing. Where attention to sentencing disparity used to be focused mainly on judges’ decisions, there has been a recent shift towards earlier stages, such as the prosecutors’ decisions. Research shows that disparity also exists at the level of the prosecutor. Structuring prosecutorial decisions is therefore important, for consistency in prosecutorial decisions can contribute to consistency in sentencing. Punishment recommendations thus need to be based on clear principles and have to be individualized.
The Dutch approach
The Dutch Prosecution Service tries to achieve these goals by issuing prosecutorial guidelines. These guidelines cover many prosecutorial issues, amongst which those relating to sanctions. The guidelines are enacted by the Board of Prosecutors General, and drafted in alignment with existing guidelines, but political and societal sentiments were also taken into account. A preliminary version of the guidelines was sent to several prosecutor’s offices to see if they reflect standard practice. In this way, the guidelines are likely to mirror the ideas of what a proper punishment is according to prosecutors.
Structure and content of the Dutch prosecutorial guidelines
The system of prosecutorial guidelines consists of one overarching framework and 74 offence-specific guidelines. This system was introduced in 2015, replacing the old system that calculated punishment points. Since it was felt that a sentencing recommendation cannot always be captured with a mathematical model, the new system is based on clear and recognizable starting points for offences but explicitly also leaves professional room for the prosecutor to tailor the punishment to the offender. It consists of three layers:
1. Three basic principles
The framework sets out three basic principles: first, offence-specific guidelines provide a starting point, after which the individualization of punishment comes into play. Second, for the decision of the prosecution, it should be taken into account whether the defendant compensated the damages of the victim. And third, the disturbed public order should be restored and reoffending should be prevented. The prosecutor is encouraged in this regard to make use of the possibilities to impose or recommend interventions aimed at changing the behaviour of the offender (non-custodial sentences, such as suspended sentences with special conditions).
2. General sentencing determinants
Besides these three basic principles, the framework also specifies several general, mostly aggravating sentencing determinants, including reoffending, participation as an accessory, vulnerable victims, discriminatory aspects, disturbance of the public order and severe nuisance, civil courage (attack on a person who is defending the victim), inflicted harm, and weapon use.
3. Offence specific guidelines
The overarching framework is accompanied by 74 different guidelines, each concerning a different offence. In such a guideline a ‘starting point’ for the punishment recommendation for the offence is given, together with offence-specific sentencing determinants. The first step for the prosecutor is to check in the guideline which punishment is the national starting point for comparable crimes. The second step is deciding whether this starting point fits the specific case at hand, or whether there are other factors to be taken into account for the punishment recommendation. Here, the prosecutor does not only take the general or offence-specific factors into account that are stipulated in the framework or in the guideline, but also other factors, such as policy priorities, the sensitivity of the case, the impact on society, recommendations of chain partners, such as the probation agency, and the personal circumstances of the defendant (e.g. financial means, education or employment). Moreover, the prosecutor has to give reasons in court to explain why he recommends a certain punishment. The defendant can reply, so the recommended sentence becomes a point of discussion in court.
An inspiration for other countries?
The dual character of principled sentencing (the necessity of structuring the discretion and of individualization) is reflected in the guiding principles of the guidelines and it directly influences the way the sentences are suggested. Dutch prosecutors thus first determine the starting point based on objectively recognizable facts and then take aggravated and mitigating factors into account. Compared to a situation without guidelines, this institutionalized approach is more coherent, transparent and is easier to work with both for the prosecutors and the defendant.
However, although the guidelines aim to diminish disparity in sentencing recommendations, the disparity has not completely disappeared. The concrete circumstances of the case at hand and the offender characteristics remain of unabated importance for the punishment recommendation, but these are not expounded upon in the guidelines.
Second, guidelines do not exist for all offences, but only for the frequently occurring ones. There are many other offences that do not have a guideline, while prosecutors might be even more in need of a starting point for these more rare offences, since they cannot fall back on their own experience with these occasional offences.
Finally, the judge is in no way bound by the sentencing recommendation of the prosecutor, other than that he has to give reasons if the punishment he imposes deviates a lot from the recommended punishment. The problem of sentencing disparity is thus not solved by having consistency in sentencing recommendations. But then again, judges use the prosecutorial recommendation as an orientation point for their sentencing decision. Consistency in prosecutorial recommendations can thus contribute to consistency in judicial sentencing.
Despite these points of critique on the Dutch prosecutorial sentencing guidelines, they do structure sentencing discretion, since they define a starting point for thinking. They discuss in more detail sentencing principles in a way that the prosecutors are guided, but they leave the prosecutors with plenty room for a punishment recommendation that takes the specifics of the case into account. Dutch prosecutors strongly support this system. It could be an inspiration for other countries in structuring their prosecutorial decision-making.