De kunst van het straffen?
Authors:   , Post Ester 
Published: May 2023

This study is focused on the origin and development of forensic care. Three groups (including their different modalities) are distinguished: detentions under a hospital order (TBR-order; from 1988 onwards: TBS-order), forensic care as a condition, and forensic care in detention.

The central question in this study is: how has forensic care under criminal law developed since the Dutch Criminal Code came into force in 1886 and how can the existing criminal law modalities, based on which forensic care can be imposed and provided, contribute to the main objective of forensic care? The imposition of forensic care is now dominated by the goal of reducing recidivism. In the vast majority of cases, this was not the reason why the modalities were created, with the exception of the TBR-order. Although consideration was certainly given to the aspect of recidivism when the conditional sentence was included in the criminal code, this does not mean that forensic care was (explicitly) intended as a condition. The development of forensic care in detention was partly due to the fact that Dutch people were imprisoned by the occupying forces themselves during the Second World War and had thus experienced first-hand what imprisonment entailed. A change can be seen when considering the realisation of the modalities (or modification of existing modalities) that were created in the last two decades. In their design, the desire to reduce recidivism resonates more clearly, although forensic care is not necessarily guaranteed. The differentiation of modalities can certainly not be traced back to a well-thought-out plan, let alone a plan with a view to forensic care. The differentiation of the modalities is based on very different reasons, the strength of the “craving” for safeguarding public safety and - last but not least - financial considerations.

Undeniably, developments in criminal justice and society have left their mark on the origin and development of forensic care. To what extent they have done so, depends partly on the strength of the "desire" for safety and, not insignificantly, the government's willingness to act or not. At present, it cannot (yet) be conclusively said that the criminal justice modalities under which forensic care can be imposed and provided contribute to the main objective of forensic care, i.e., recidivism reduction. Also it cannot be said that treatment does not help (at all). Research has shown that programmes focused on treatment and counselling are more successful in reducing recidivism than those aimed at repression.
The fact that nothing can yet be said about the effectiveness of forensic care and that the disorder itself – barring exceptions – is not a strong predictor of recidivism touches on the question of the right of existence of forensic care.

This thesis defends the claim that the maximum sentences on offences should not only embody punishability but the social views on “sanctionability” - one upper limit for both sentences and measures, a revitalisation of the association theory. The proposed upper limit also applies to conditional modalities based on which forensic care can be provided. When it comes to forensic care in detention, it is important to note that participation in the penitentiary programme and eligibility for conditional release (with forensic care possibly being part of it) are matters that are neither to be earned nor depend on the interests of others. Meaningful use of the sanction freedom that is provided with a view to reducing recidivism (factors) is important, but the question is what ambitions the use of criminal law should “live up to” and how realistic they are, partly because of the percentage of offenders who regularly come into contact with the law.