Judges face challenges in achieving true neutrality, as biases and subjective views impact fair sentencing, explored in Rinus Otte’s *The Consolation of Defective Criminal Law
Do you recognize the following: “If you make a mistake then you could not have done much about it, but if someone else does the same then it is much worse, then he should not be able to escape the worst punishment. Punishment and reward have become an integral part of our societies. What is striking is that we humans are increasingly asking for equality in punishment and development of other people in this world. In these days I am reading the book: “The Consolation of Defective Criminal Law,” by the professor, former criminal judge and scientist Rinus Otte, who is also chairman of the College of Procurators General and therefore also the person ultimately responsible for the Dutch Public Prosecution Service.
Can you make a neutral judgment as a judge?
It goes without saying that every judge working in a court anywhere in the world should adopt a neutral attitude and, by adopting this neutral attitude, should make the fairest possible judgement on the persons who have been punished and who are to be convicted. What strikes me most about Rinus Otte’s book is that this is completely impossible. It starts with the fact that any judge who must judge the case must assess the fairness and reliability of the person to be judged. As you can imagine, a look into the eyes of the person to be suspected does not always help.
Can you tell by looking at a person’s eyes if they are guilty?
If only it were so beautiful that the judge could immediately see from the eyes of a person whether he is guilty or not. A simple look in the eyes, and immediately the right conviction or conviction of the right perpetrator, that would be a godsend. The judge who can immediately read what is right or wrong. Unfortunately, all of us humans, including judges and magistrates, have constructed our own perception of things in this world. Our perception that has been built up throughout our lives and careers by the things that we have all experienced as human beings, and to which we have been able to give our own value and meanings.
How strong are your values and beliefs?
Have you ever tested your premonitions and/or perceptions for incompleteness, and? This is why the judges, and their staff are only allowed to judge or convict a defendant based on facts. This also means that a person can only be convicted if the facts found contain sufficient legal and convincing evidence to be attributed to the person on trial. Facts that are available for assessment from the prior research. But can these facts be interpreted in the same way in every investigation and every criminal offence in different court cases? This is the next question in the book. Is a male murderer more punishable if he declares after the murder that he has been bullied for years by the woman he has now murdered as a last resort for his own safety?
Can you kill in self-defense at all?
Self-defense that is policy by a suspect with words without sufficient underlying evidence or witnesses can therefore be immediately consigned to the trash. Something else that is described as a trend by Rinus Otte in his book is the fact that people are increasingly choosing the space they see for themselves, and in the meantime think they can use this space without thinking about others or possible negative consequences. Speeding on highways, for example. If there is insufficient control, this should be possible, right? And if the offender adds potential casualties, these offenders often say that there was insufficient control that prevented them from thinking about their speed. Also, the little effort of the police to deter them from this illegal speed should serve as a mitigating circumstance for them, according to these traffic offenders.
Can anyone get a lenient sentence if there is enough evidence?
What is sufficient and convincing evidence? Who determines whether someone has acted in self-defense? Who determines whether the suspect really acted out of extreme necessity? How does every suspect of criminal or life-threatening actions receive the right punishment, and how do we get these people back on the right path? If I study and read everything carefully, this is completely impossible for me. There are, in my view, so many different people with so many different perceptions of cases, that any decent judge in any country will find it very difficult to say this about his or her past sentences. The how and why of a crime or murder often remain shrouded in mystery.
Can the world grow fast enough without violating borders?
I dare to say from my own experience that sometimes as a human being you must dare to cross a border to gain a new experience that may help others in the future, even if this act is strictly forbidden under current criminal law. Does the development of the world and humanity in general go hand in hand with the development of criminal law and the security of us as human beings? A given fact is that you make a rule to protect the largest group, exceptions will always exist, but punishing a punished person in a proportionate way, so that he learns something from the punishment that has been meted out, and the fellow man does not have to fear a repetition of this person’s offense is an almost impossible mission in my eyes.
Should punishments lead to repentance of the punished?
As described above, punishing criminals is quite a complicated matter. Knowing for sure is therefore a prerequisite for judges and lawyers in the first place. Later in the trial, the defendant must be able to agree with the legality of the punishment he or she must serve. If the punished person does not feel this, he or she will also appeal in multiples, according to the expert Rinus Otte. This appeal of criminals is currently allowed a lot. However, it remains to be seen whether these appeals will result in a sentence being equal to the previous sentence handed down for a similar offence. Unfortunately, judges and lawyers are only human, right? What do you think about this?