Eleonora Di Molfetta

In December, the Dutch public news network NOS reported that two Algerians were sentenced to five months of unconditional detention by the court of Groningen for being found with four stolen phones. The severe punishment imposed by the judge may be interpreted as a strong message sent to pickpockets, possibly on account of the recent increase in cases of pickpocketing occurred in the city of Groningen. Lately, the police arrested twenty people and reported that most of the arrested stayed in different asylum seekers centres in the Netherlands. In this regard, the mayor of Groningen stated that the long asylum request procedure is the problem, since these people lingered in the streets of the city awaiting the outcome of their asylum request.

On this subject, the Dutch Public Prosecutor (Openbaar Ministerie: OM) stated that more lenient punishment would not solve the problem of crimes committed by asylum seekers whose applications are pending. According to the OM, most of the asylum seekers in the Netherlands come from ‘safe countries of origin’ and as such, their asylum requests would be eventually rejected. On this ground, the OM and the Secretary of State agreed that, in order to solve this problem, the main objective is to remove these people from the streets and to expel them from the Netherlands. With these premises in mind, it is not surprising that the presence of foreign nationals in the criminal justice system is rather problematic due to their impending removal from the country.

Because of the lack of a legal residence permit – or, in more practical term, of an address in the Netherlands – foreign national offenders are not eligible for fines, community service orders and probation services (Boone & Kox, 2012). What remains in the arsenal of possible punishment imposed by criminal courts are custodial sanctions, to which foreign national offenders are subjected relatively often. To this extent, offenders without a legal residence permit are excluded de iure and de facto from more lenient and rehabilitative sanctions enclosed in Dutch Criminal Code. While this circumstance can be mainly attributed to practical constrains linked with the enforcement of these sanctions, this exclusion can lead to problematic outcomes in terms of ‘equal’ punishment between foreign national and national offenders.

This exclusion can lead to problematic outcomes in terms of ‘equal’ punishment between foreign national and national offenders

Let us take as example, for the sake of simplicity, a case of shoplifting. According to the sentencing guidelines for judges, a fine of 200.00 euro will follow from the commission of this misdemeanor. However, if a foreign national commits shoplifting, the sanction imposed by the court will most likely consist of a custodial sanction due to practical constraints, such as lack of means or lack of an address to essentially collect the fine. However, to what extent can practical constraints justify such a difference in punishment? On this ground, it may be argued that criminal courts should lower the terms of custodial sanction for foreign national offenders in order to ‘compensate’ the earlier choice of punishment. Nevertheless, this does not seem the path of reasoning taken by the court of Groningen in its judgment against the two Algerian pickpockets.

The severe judgment of the court of Groningen has clearly caused concerns among scholars interested in sentencing and maybe it will start a debate on the difficult task with which judges are vested when sentencing foreign national offenders. The defence attorney of the two Algerians stated that, from the outcome of the case, it seems that the court wanted to set an example. Undoubtedly, this is not the first case in which a criminal court delivers severe punishment in order to send a message of deterrence to potential offenders. Nevertheless, this case raises some interesting points of discussion for scholars interested both in sentencing and in ‘crimmigration’. While the severe judgment of the court of Groningen might be an exceptional message of deterrence in the Dutch sentencing landscape, indicators that targets and instruments of migration control have permeated the criminal justice system in the Netherlands are present (van der Woude et al., 2014) .

So far, explanations of potential disparities in sentencing outcomes between national and foreign national offenders have been construed in term of practical constraints. However, what if courtroom decision-making has been affected as well by subtle needs to meet border control targets? In this case, we might be assisting to a process of bifurcation in sentencing, in which two different sets of rules and principles apply to national and non-national offenders. The problem of this bifurcation is that it is based on the myth that all offenders without a legal residence permit will be deported (cfr. Boone & Kox, 2012). Through administrative or criminal detention, the Dutch government may be able to achieve the removal of foreign national offenders from the streets. However, the expulsion from the country seems less likely to be achieved in light of the impasse in negotiating readmission agreements with some countries, such as Algeria, Morocco, China and Ethiopia. When this condition cannot be fulfilled, it might be problematic to exclude foreign national offenders from more lenient and rehabilitative sanctions since after serving their punishment they will return to Dutch society.

We might be assisting to a process of bifurcation in sentencing, in which two different sets of rules and principles apply to national and non-national offenders

The unrestrained use of custodial sanctions for foreign national offenders needs to be evaluated more carefully in order to avoid a paradoxical situation, namely a bifurcated sentencing system based on the fictional criteria that one group of offenders will be expelled. In light of the recent developments, time has now come to investigate the problematic landscape of sentencing and punishment for foreign national offenders. Nevertheless, it is appropriate to address this problem by considering whether and how rationales of migration and border control have permeated sentencing decision-making. This is the quandary I deal with in my own research, and on which I wish to prompt debate among those interested in sentencing and crimmigration.