Treatment as punishment: Forensic psychiatry in The Netherlands (1870–2005)

This article provides an overview of the development of forensic psychiatry in the Netherlands from the late nineteenth to the early twenty-first century. The first part addresses the ways forensic psychiatry established itself in the period 1870–1925 and focuses on its interrelatedness with forensic practice, psychiatry's professionalization, the role of the government, the influence of the so-called New Direction in legal thinking and (Italian and French) anthropology of crime, and the debates among physicians as well as between psychiatrists and legal experts on the proper approach of mentally disturbed offenders. From the mid-1920s on the so-called ‘psychopaths laws’ anchored forensic psychiatry in the Dutch legal system. The second part zooms in on the enactment of these laws, which formalized special measures for mentally disturbed delinquents. These implied a combination of sentencing and forced admission to and treatment in a mental institution or some other form of psychiatric surveillance. The article deals with the meaning, reach and consequences of this legislation, its debate by psychiatrists and legal experts, the number of delinquents affected, the offenses for which they were sentenced and the (therapeutic) regime in forensic institutions. The goal of the Dutch legislation on psychopaths was ambiguous: if it was designed to protect society against assumed dangerous criminals, at the same time they were supposed to receive psychiatric treatment to enable their return to regular social life again. These legal and medical objectives were at odds with each other and as a result discussions about collective versus individual interests as well as about the usefulness and the effects of this legislation kept flaring up. To this day the history of this legislation is characterized by the intrinsic tension between punishment and security on the one hand and treatment and re-socialization on the other. Whether at some point one or the other prevailed was largely tied to the social climate with respect to law, order and authority.     

Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice

This article presents an interpretive politics of the judiciary, arguing for the value of interpretive political analysis in understanding developments in case law and judicial activity. It sketches out a senior judicial tradition, which is argued to guide but not predetermine the actions of the British senior judiciary. A case study, the senior judiciary's response to the Imprisonment for Public Protection (IPP) sentence, is presented, drawing on case law, extra‐judicial speeches, and interviews with five serving or retired senior judges. It is argued that this demonstrates the senior judiciary to be politically attuned actors, often highly sensitive to the broader context, while equally determined to act with fidelity to the law and the responsibilities inherent in an independent, impartial judiciary. The IPP case law suggests that the senior judicial tradition, and its inherent tensions, limits the extent to which the senior judiciary feel equipped to oppose the ‘pre‐emptive turn’ in criminal justice.