Published On: Tue, May 1st, 2018

Is automatic early release coming to an end?

Hilbert HaarBy Hilbert Haar

Imagine this: the court sentences a man for armed robbery  to a prison sentence of nine years. He spent already eight months in pretrial custody, so he has one hundred months to go before he  roams the streets of Philipsburg again. Right?

No. Wrong, because the robber only has to serve two-third of his sentence. In this case, that’s 72 months. But because he has already served eight months in pretrial detention, he will be a free man again after 64 months – that’s five years and four months; quite a difference from the nine-year sentence.

Small-time criminals who get a sentence of one year in St. Maarten don’t have to serve twelve months either. After serving six months they only have to do one-third of the remaining six months. If such a convict has spent, say, four months in pretrial detention, he will be released immediately after the six-month term expires. Do  the math.

These rules also apply in the Netherlands and in that country an interesting development is taking place. When Pim Fortuyn killer Volkert van der Graaf was released in May 2014 after serving 12 years of his 18 year-sentence, the country was in uproar.

Minister Sander Dekker (legal protection) announced a draft law this week that puts a stop to the regime of automatic early conditional release.

The current rules in the Netherlands are like this: convicts with a verdict of at least 6 years are automatically released after serving two-third of their sentence. Hence Van der Graaf’s release after 12 years; it was not special treatment or an act of kindness and forgiveness – the system simply applied the law.

Dekker wants to take the automatic part out of the regulation for early release. A judge will have to rule on a case by case basis about the early conditional release of those with a sentence of at least 6 years.

Inmates who don’t behave in prison will serve more time. Dekker also wants to limit early release to a maximum of two years. Van der Graaf would have had to serve at least 16 years under the new rules.

St. Maarten’s early release regime is milder than that in the Netherlands. If someone is sentenced to more than one year in  prison, he is entitled to early release after serving two-third of that sentence. In other words: of a 15-month sentence, inmates serve only five months.

The Pointe Blanche prison houses some inmates that serve the maximum temporary prison sentence of 30 years. Under the current legislation, these criminals are entitled to early release after 20 years. If St. Maarten were to align its legislation with that of the Netherlands, they would serve at least 28 years.

Dekker’s draft law has obviously not gone into effect yet, but there is little doubt that this will happen. His proposal stems from the governing accord signed by VVD, CDA, D66 and Christian Union. The PVV and SGP included proposals in their political manifestos to limit early release. With their support, there is a broad support for Dekker’s draft law – 99 of the 150 MPs would vote in favor.

Right now, the draft is for advice at the Council for the Administration of Justice and the Public Prosecutor’s Office.

Not everybody is convinced that these changes to the law will have the desired effect. Experts in criminal law have expressed concerns that judges will adapt to this new reality by lowering their sentences.

Should St. Maarten get involved in the plans to change the rules for early release? I think this is mandatory, based on article 39 of the Kingdom Charter. That article establishes (among other things) that criminal law in the Netherlands, Aruba, Curacao and St. Maarten will be regulated “as much as possible in a similar way.”

Furthermore, article 39 states that proposals for far-reaching changes to  existing legislation will not be submitted to the “representing body” (the Parliament) – or handled by Parliament – before the governments of the other countries have had the opportunity to offer their point of view.

The question is now whether Dekker’s draft law represents  a far-reaching change.

I’m not a legal expert, but common sense tells me that what Dekker wants is, indeed, rather far-reaching. The change to the law affects many citizens who get on the wrong side of the law and end up in prison in the future.

I figure that our parliament would have no qualms about adopting Dekker’s rules for early release. After all, in 2012 it was our parliament that took an article out of the new penal code that gave inmates with a life sentence the right to a review after twenty years. In 2012, our parliament, and our minister of justice were of the opinion that a life sentence is a life sentence.

Fortunately for our lifers, the Constitutional Court ruled the removal of this article unconstitutional; so the parliament had to bow to this higher authority and put the article back in the penal code. (Remarkable: in the Netherlands a life sentence still is a life sentence).

I don’t have any sympathy for characters who rob jewelry stores or for those who go around killing people, but decent countries ought to treat their criminals decently. And if there is legislation in the works that affects the position of these criminals, well, then our body politics ought to pay attention to it and – at least – speak out. That way, we all know where we stand on this subject.