Chapter

Never Mind the Pain, It’s a Measure! Justifying Measures as Part of the Dutch Bifurcated System of Sanctions

Matt Matravers

in Retributivism Has a Past

Published in print December 2011 | ISBN: 9780199798278
Published online January 2012 | e-ISBN: 9780199919376 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199798278.003.0010

Series: Studies in Penal Theory and Philosophy

Never Mind the Pain, It’s a Measure! Justifying Measures as Part of the Dutch Bifurcated System of Sanctions

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In the Dutch criminal justice system, punishments are indeed sanctions, but there is a distinct second category of sanctions that may (by definition) not be called punishments. The Dutch criminal code has a bifurcated, dual-track system of sanctions consisting of punishments and measures. At sentencing in a criminal court, under the umbrella of “sanctions” an imposed measure can mean that, for public safety reasons, people are confined beyond what could be justified on grounds of culpability and harm. Punishments have to conform to the proportionality limits that stem from fundamental notions of desert, which are indeed at the heart of the Dutch philosophy of punishment. Measures have no such limitation. How then can the pain that is inflicted on offenders who are sentenced to a measure be justified in the Dutch sanctions system? One common answer to that question stresses the definition of punishment. Some core elements of generally accepted definitions of punishment are absent for measures. These elements address the deliberate infliction of suffering for an offense. The argument is that a measure does not aim to inflict suffering, so the unintended “subjectively felt” pain needs no justification. This chapter argues that the definitional answer is unsatisfactory from a moral point of view. It focuses on two measures aimed at the protection of society that most pressingly require moral justification of the (unintended) suffering that they bring about. These are the entrustment order and placement in an institution for persistent offenders. The nature and workings of these protection measures are described, after which the question of their justification is posed and examined without definitional constraints.

Keywords: Netherlands; Dutch criminal justice system; punishments; measures; entrustment order; institutionalization; criminal law

Chapter.  13404 words.  Illustrated.

Subjects: Criminal Law

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