Last week, the Dutch provisional judge decided that the murderer of Pim Fortuyn, the populist politician who was murdered in 2002, does not have to report to the Probation Service any longer. Reporting to the probation service was one of the conditions that was applied to the conditional release of Van der G in 2014, after he served 12 of the 18 years unconditional prison sentence that were imposed on him. Besides this weekly obligation to report, other conditions were imposed on the conditional release: a location ban for several cities in the Netherlands, supervised by electronic monitoring, a media ban, a contact ban with the family and driver of Fortuyn, and the compulsory consultation of a psychiatrist or psychologist.
Van der G successfully challenged one condition after the other. Already three months after his release, he had managed to get rid of the location ban and the electronic ankle tag. Since the risk that he would recidivate was assessed as very low by behavioural experts, the court considered these conditions as too far-reaching infringements on his private life. In 2017, the court judged in a case about the level of detail of the answers that Van der G had to give to questions that were put to him by the probation service in the context of supervision. The court decided it to be sufficient if Van der G gave a basic insight in his rehabilitation trajectory, despite the fact that both the probation service and the Prosecution Service made the argument that they were not able to make a reliable risk assessment based on this limited information. Also in the case that was dealt with by the court, last week, the probation service took the position that it was impossible to make a reliable risk assessment based on the information Van der G was legally obliged to give. In that case, the provisional judge decided consistently, the obligation to report was senseless and therefore disproportional. It could be derived from the legal history, was the main argument, that conditions to a conditional release are exclusively intended to contribute to a secure return of the offender in society.
From a legal point of view this is a crystal clear decision. Also in a recently published report about conditional release, it was confirmed that the only objective of conditional release according to the law, is its contribution to a reduction of recidivism. Despite of this, it is well understandable that this decision is not easily understood by the general public, who is ‘sold’ the conditional release with the argument that the convicted person is not unconditionally free, but still under supervision. Not much is left of this, however, spacious within the unconditional ending of the sentence. Besides, it now turns out that the convicted person can contribute to an early ending of the conditions by not cooperating.
I had to think about this case when I was listening to Fergus McNeill last Friday, who gave a talk about supervision as pervasive punishment. He studied the experiences of offenders who are supervised for a long, sometimes life, period. One of his statements is that offenders often don’t experience the supervision as ‘panopticon’ (seeing everything), but as malopticon in the sense that all their experiences are framed in the perspective of them being bad and a potential danger for society. They suffer, in other words, not from being seen too much, but from being seen too little. Therefore they often experience supervision as dehumanizing instead of contributing to their reintegration process. The decision of the provisional court can be understood from this holistic perspective. The reintegration process of Van der G seems to be successful in every respect. In the specific context of this case, intensive supervision conditions can only work against this process. However contradictory, less intensive supervision can sometimes make a greater contribution to the safety of society than the opposite.