We are currently witnessing two trials in cases that have, each in their own inconceivable way, caused great public outcry and concern. Anders Breivik stands trial for killing 77 people in Oslo and on the island of Utøya; Robert M. for abusing 67 children in his capacity as an employee at nursery schools in Amsterdam (E-NL). These are the cold facts that leave us speechless.
But the judges will have their say. Among the difficult legal questions the courts face, the determination of a possible sentence might be one of the most striking. And in both cases, the accused stand trial for causing multiple victims. The questions then are: Should this matter in sentencing? Does it? And how much?
120 Years In Prison?
In general, criminal law expresses the view that unlimited cumulation of penalties leads to too severe sentences. In that respect, § 57 of the Dutch Penal Code requires courts to impose one total sentence in the case of multiple offences. The maximum of the total sentence shall not exceed one third of the highest applicable maximum sentence.
In the case of Robert M. that would probably mean that the maximum prison sentence will be 20 years. In comparison: the maximum sentence in the case of a single (aggravated) offence would be 16 years. The government and the Amsterdam District Court recently cast their doubts on the legitimacy of this system of restricted cumulation (or parts of it) on the grounds that it can prevent the courts imposing the (harsher) sentence it finds appropriate.
The More You Steal, The Less You Feel
One thing in particular is puzzling about the sentencing of multiple offenders. Usually, the multiple offender is considered a more serious criminal than the single offender, since he has been persisting in his criminality and has, because of his multiple offending, caused more harm to others. Yet in the actual sentence imposed, he usually receives a discount: a bulk discount which becomes greater the more serious the criminality and the harm done. That means that each added offence contributes less to the total sentence imposed.
German empirical research for example has claimed to have found that the average prison sentence for one burglary was 7.9 months, for three burglaries 15.6 months and for nine burglaries 26 months. Although the underlying rationale is not discussed here, this practice offers a factual explanation why the sentencing ceiling is rarely met.
The Cathartic Function of the Criminal Trial
But at one point (it cannot be determined where that point exactly lies) the threshold for the sentencing ceiling is met. It is the point at which the legislator in authoritative, vague and abstract notions has expressed that (more) punishment no longer serves any justifiable goal. That is also the point where public concern rises when it feels that the maximum sentence is (still) too lenient.
Does this make the other charges redundant? Why charge more than (presumably) ‘needed’? The public prosecutor in the Robert M. case has made a great effort to put many charges on the indictment, so many that (if proven guilty) it would have been clear from the outset that the maximum applicable sentence could come into view, even if the defendant would be convicted for only half of the charges laid out in the indictment.
At this point, we see that the criminal trial is about more than punishment alone. The processes itself must contribute to public acceptance of the forthcoming judgments. The criminal trial serves as a public platform for thorough fact-finding and account-giving. It is about getting close to the truth of what actually happened (and maybe why) and, today more than ever, about recognition of the victims and the harm that has been done to them.
I would hope that, when aspiring to these objectives at least in part, the cathartic and symbolic function of the criminal trial might actually prevent public opinion turning into penal populism. It might prevent us from unlimited cumulation of penalties and, at the same time, help us do justice to all parties involved.