Summary Checklists Crime & Psychological Vulnerability
Checklist Week 1: Punish or Treat
What is actus reus, and what is mens rea?
Actus reus Mens rea
The act or conduct The individual’s mental state at the time of the
act
Have actually committed the offense in Have had the mental capacity to have
question committed the act consciously, knowingly, and
purposefully
Guilty act Guilty mind
Physical (the act itself)
Why do we punish?
See table at next question, column ‘consequentialist’
What do the consequentialist, retributive, restorative perspectives on offender
punishment entail?
Consequentialist Retributive Restorative
Deterrence: people are Providing just deserts to the Nonpunitive means of
deterred (scared of) from offender, by giving him what he providing restoration (e.g.
crime because they are deserves for his harmful mediated conferences
concerned about the actions. Punishing the offender between victims and
consequences. Aim to prevent may (at least partially) repair offenders).
the criminal committing new the harm that has been caused,
crimes against his countryman thereby providing just deserts
to keep others from doing to the victim (and his family and
likewise. local community).
Incapacitation: when there is a Deserved punishment of a guilty Emphasizes the harm caused
risk that the offender will offender, in proportion with his to victims. Make offender
commit more (serious) crimes, moral blameworthiness for a aware of the physical,
the public can be protected by past offense. psychological, and financial
removing that person from effects there crimes have on
the community. victims.
Hope the offender realizes
what he has done. Repair
harm that is done.
Crime hurts, justice should
heal. The conversation
between the offender and the
victim should be central to the
process.
Correction: steps can be taken If you break the law, you Encourages offenders to
during the sentence to try to deserve punishment (just develop a sense of individual
change the offender’s desert). The punishment is the responsibility, to become a
behavior. end in itself. ‘An eye for an eye’. responsible community
Crimes often are committed as Society’s revenge for moral member.
a result of individual an social wrongdoing by an individual. An aim for restoring,
problems. Through the Basic principle: punishment strengthening and building
sentence an attempt to should inflict the same on the relationships between
, ‘rehabilitate’ the offender can offender as the offender has offenders, victims and
be made. Specific treatment inflicted on his or her victim. communities. Focus on
that the offender needs in But punishment should be repairing harm done to victims
order to ‘resocialize’. proportionate to the crime. as well as repairing the broken
relationship offender-victim as
well as offender-community.
What are reasons for reduced punishment and/or mandatory treatment?
Plea bargain: reduced sentence if they plea guilty
Defendant who is found not responsible for the crime: possibly admitted to a psychiatric hospital if
he is a danger to himself or to others or to the general safety of persons or property.
A defendant who, at the time of the alleged crime, was affected by a mental defect or disorder may
receive a “disposal to be involuntarily admitted to a forensic psychiatric hospital on behalf of the
state” (TBS-order)
The court can impose a TBS-order if all of the following conditions apply:
1. The defendant must have a mental disorder: his responsibility for the alleged crime is
(severely) diminished or absent
2. The crime carries a prison sentence of at least four years, or the offense belongs to a
category of offenses specifically mentioned in the law as carrying a lesser sentence
3. There is a risk to the safety of other people or to the general safety of persons or goods
Insanity= “A person who commits an offence for which he cannot be held responsible by reason of
mental defect or mental disease is not criminally liable.”
How and by whom is this assessed and decided?
Tests for legal insanity:
The "M'Naghten The "Irresistible The "Durham Rule" The Model Penal
Rule" Impulse" Test Code (ALI-MPC) Test
Defendant either did As a result of a mental Regardless of clinical Because of a
not understand what disease, defendant was diagnosis, the diagnosed mental
he or she did, or failed unable to control his defendant's "mental defect, defendant
to distinguish right impulses, which led to a defect" resulted in a either failed to
from wrong, because criminal act. Purely criminal act. A understand the
of a "disease of mind." “volitional” test. Can be defendant is entitled criminality of his
Purely “cognitive”. used in combination to acquittal if the acts, or was unable
with the M’Naghten crime was the product to act within the
rule. Allows for a of his mental illness. confines of the law.
defendant to be found Allows both lack of
not guilty by reason of understanding and
insanity if his or her lack of control as a
mental illness was such basis for pleading
that, although the insanity defense.
recognizing the Establishes a limited
wrongness of the diminished capacity
offense, he or she was defense for cases
compelled to commit when the insanity
the offense anyway. defense does not
apply.
In the Netherlands: a psychiatrist and psychologist advise the court, but the court decides. Performed
by individuals.
How does an offender’s mental health affect his or her sentence?
,Diminished responsibility, five-point sliding scale:
1. Full responsibility
2. Slightly diminished responsibility
3. Diminished responsibility
4. Severely diminished responsibility
5. Total absence of responsibility
If some forms or instances of criminal behavior are clearly related to a subject’s mental illness, then
prosecuting these crimes through the usual legal channels is senseless because it will only result in
the proverbial “revolving door,” whereby punishment is unlikely to have a deterrent effect on
behavior that is driven by illness. Power to order such defendants into specialized treatment
programs that target the mental illness, hoping thereby to reduce the overall rate of recidivism.
NL: can be send to TBS, TBS with measures and a combination of TBS and prison.
Which (types of) mental disorders might affect an offender’s sentence?
Cluster B: the ‘dramatic, emotional or erratic’ types. Histrionic, narcissistic, anti-social and borderline
personality disorders
Individuals with psychotic and externalizing behavioral disorders, particularly those who also abuse
drugs and alcohol, tend to engage in higher levels of violence than individuals with other forms of
mental illness
Youth: Oppositional Defiant Disorder and Conduct Disorder
Antisocial personality disorder and psychopathy
Axis I disorders: Major mental disorders and clinical syndromes (e.g. childhood disorders, organic
brain syndromes, substance abuse disorders, psychotic disorders, mood disorders, anxiety disorders,
impulse control disorders, somatoform disorders, psychophysiological disorders, sleep, eating, and
sexual disorders, and others).
Paranoid, antisocial, and borderline PDs
Does alcohol or drug abuse affect an offender’s sentence?
Higher penalties for drug and alcohol-related violence
In the Netherlands: The Violent Offenders (Alcohol and Drug Testing) Act allows the police to require
people suspected of violent offences to take drug and alcohol tests. If a suspect tests positive for
alcohol or drugs, the Public Prosecution Service can demand a higher penalty. This may be a higher
fine or a longer custodial sentence or community service order. It may also be a suspended sentence
with special conditions attached, such as:
- A ban on alcohol consumption
- A ban on access to certain locations (a restraining order or exclusion order)
- An attendance order
- Training (behavioural intervention) to help prevent the violent offender from abusing alcohol
or drugs again
Diminished responsibility possible with substance use disorder/dependence.
How does childhood victimization affect an offender’s sentence?
Diminished Capacity: history of early childhood abuse; dysfunctional family of origin can be
mitigating factors.
What are the role of, and the provisions for victims in the criminal legal process?
Victim impact statement (VIS)= a statement made by the victim and addressed to the judge for
consideration in sentencing. Description of the harm in terms of financial, social, psychological and
physical consequences of the crime. In some jurisdictions: statement concerning the victim's feelings
about the crime, the offender and a proposed sentence =victim statement of opinion.
Framework Decision EU, basic rights for victims of crime:
, - To receive respect and recognition at all stages of the criminal proceedings
- To receive information and information about the progress of the case
- To provide information to officials responsible for decisions relating to the offender
- To protection, of victims' privacy and their physical safety
- To compensation, from the offender and the State
- To receive victim support
- To participate in mediation for offences which are appropriate for this sort of measure
Victims in the Netherlands can obtain free help, advice and information from a variety of
organizations. Focus in Netherlands of support: restoration of justice (not offender/punishment
focused but victim recovery focused)
How has this historically developed?
After 2016: VIS also about proposed sentence (In the Netherlands).
Germany, Portugal, Spain, Turkey: victim is allowed to act as second to public prosecutor and he can
appear in court, ask questions, present evidence, make a statement and validate a claim for
damages.
Position of victim has shown improvement since 1970’s. Development of victim’s right within EU
were further enhanced by Treaty of Lisbon, Five Year Plan for Justice and Home Affair within EU and
2009 Stockholm Program.
Framework Decision was first hard law covering a wide range of victim’s rights at the international
level.
New rights for victims:
- Family as deceased victims are also seen as victims and can speak in court
- There has to be accessible and understandable information for the victim
- Access to victim-support
Which main cultural or national differences are there in the questions above?
Sweden: accountability in the concept of mental illness and the comparable of mental abnormality.
Mentally ill became responsible for their act and psychiatric care became a sanction to the mentally
ill not being accountable and thus free from sanction.
Trial by jury or judge.
There are some important similarities as well: many general principles of criminal law are recognized
across the globe.
The most important principles are about human rights and are included into law (codified). At an
international level that is realized in treaties between nations.
United Nations: Lower level of protection for civilians than ECHR:
- Death sentence not abolished
- No court on human rights where civilians can appeal directly
How are national criminal justice systems internationally bound to general principles of
criminal law?
Many general principles of criminal law are recognized across the globe. The most important
principles are about human rights and are included into law (codified).
Council of Europe, main results achieved by de COE are:
- European Convention on Human Rights (1953)
- European Court of Human Rigths (1959)
European Convention on Human Rights:
- Article 2 – Right to life
You have the right to life (death sentence is abolished).
- Article 3 – Prohibition of torture
