The Netherlands

In 1925 and 1928, the Netherlands enacted legislation known commonly as the TBS law (an acronym for the words that translate, 'detention at the government's pleasure') which was amended in 1988 (Petrunik, 1994). The law affords judges the discretion to order an assessment, at the time of sentencing, of an offender's degree of responsibility for the offence, in cases where the offence is violent in nature or preceded by a series of violent offences, carries a minimum four year term of imprisonment and a mental disorder is suspected (Petrunik, 1994). The court must also judge the offender to be a danger to the public. The offender is then remanded to a hospital where a psychologist and a psychiatrist conduct an assessment. This includes an evaluation of mental state, offence history and circumstances and behaviour at the time of the present offence. The assessment is used to determine the offender's degree of responsibility, be it partial or completely absent (Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders, 1995). If an offender is found not responsible for the acts committed due to a mental disorder, there will be a 'non-punitive' order of indefinite detention; such detention is served at a hospital designed specifically for such offenders. This order is re-evaluated every two years. If found partly responsible, there are several options available. The offender has, at this point, the right to refuse any treatment or further assessment; the offender would then be sentenced under the Criminal Code. A partly responsible offender who does not refuse treatment may be given non-punitive confinement as in the case of a non-responsible offender. Alternatively, the judge may order a term of punitive (i.e. prison) detention followed by non-punitive confinement for treatment. If the offence for which the person presently stands accused is not violent but the court still finds that there may be a risk to the public, he or she may be confined to a hospital for a maximum of four years.

There is the option for gradual release of an indefinitely confined offender into the community (Petrunik, 1994). Over time, inpatients of a treatment facility will be allowed into the community for increasing intervals. Eventually, they are allowed out in a probationary scheme, under which the treatment facility holds responsibility for the patient. Studies of the Netherlands legislation have found that indefinite confinement, overall, averages six years; dangerous sexual offenders, as a subgroup of all offenders, are confined for approximately eight years.

The dangerous offender legislation of the Netherlands represents an improvement on other dangerous offender based on a clinical model in other nations. In the Netherlands, mental health assessments do not focus solely on predicting dangerousness or base their assessment only on a mental disorder. Rather, the assessments examine mental state, offender history and circumstances and behaviour at the time of the present offence which provides a more rounded picture of the offender and the offence, potentially improving behaviour predictions. Indeed, a study based on this method of evaluation found that those offenders who were not confined, contrary to the assessment's recommendations, were more likely to recidivate than those released in line with assessment recommendations (Petrunik, 1994). If community protection is to be regarded as the goal of dangerous offender legislation, it might be useful to closely consider the Netherlands' methods of offender evaluation and release, as the protocol that is in place there is effective without allowing for the violation of offenders' fundamental rights and freedoms.

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