The Polluter Pays – Costs orders in criminal cases and contributions towards the cost of detention
The Dutch government is considering several measures to force a convicted person to contribute towards the costs it has made or will make in relation to criminal proceedings. The question arises which problem – if any – will be solved by this.
The coalition agreement of the Rutte II cabinet contains several plans to force a convicted person to contribute towards the costs the government has made or will make in relation to his trial and the execution of the imposed sentence. Although most criminal justice systems are quite familiar with these phenomena, they are – at least in recent history – novelties for the Dutch criminal justice system. The question arises which problem – if any – will be solved by this?
First of all, the coalition agreement has put forward the idea of implementing so called costs orders, the conviction of the defendant in the costs of criminal proceedings, similar to costs orders in civil and public court proceedings. The rationale is simple : the wish to transfer the costs of the criminal justice system on to the person who provoked these costs. So, by this plan the well-known polluter pays principle makes its entry into criminal law as well. Although, it is more correct to speak of a re-entry, since a costs order in criminal cases was – as Peter Tak describes in his recent report on costs orders in Germany and England – already familiar in the Dutch criminal justice systems in the nineteenth century. At the end of that century the costs order was abolished, however, because it was considered to be an impediment to the rehabilitation of the convicted offender. Only thorough empirical research can actually prove or disprove the correctness of this hypothesis, but it is clear that any substantial debt to the government by the time the prisoner leaves the institution, may be considered as a goad to new criminal offences. The aforementioned report of Peter Tak shows however that in Germany these and other objections against the costs order only influence the strictness and the way the costs order is implemented, not the mere existence of the costs order.
Contributions towards the cost for prisoners
A second plan of the Dutch cabinet is the implementation of contributions towards the cost for prisoners. At this stage we can only guess what the exact plans will be, but it is clear that only a rather symbolic contribution can be expected from the average prisoner. Since the costs of a Dutch prisoner exceed € 200,- a day, a self-supporting prison system is a utopia. Probably the only goal of the contribution towards the cost of detention is to stress to the prisoner that his stay under the roof of the government is quite expensive and that these costs should not only be borne by society but also by the prisoner himself (since his behaviour, in the end, causes detention costs).
Just a drop in the ocean
What to think of the aforementioned ideas from the Dutch government? Of course, prisons should not be considered to be luxury resorts. And of course, criminal proceedings are expensive, so why not force the convicted person to contribute to these costs, at least a little. It sounds rather fair, but the question remains which actual problem will be solved with these instruments? Since the costs of the criminal justice system are extremely high and you can’t get blood from a stone, the financial benefits for the government will be just a drop in the ocean, whereas the debts to the government may lean heavily on the convicted person. Seen from the perspective of rehabilitation one can wonder if things will not go from bad to worse.