Dutch and american criminal justice systems



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DUTCH AND AMERICAN CRIMINAL JUSTICE SYSTEMS

The Dutch Practice of Tolerance Compared

To the Punitive United States

Ashley Conner

Penn State University
Abstract:
This paper indentifies key similarities and differences between the American criminal justice system and the Dutch criminal justice system. It analyzes how each country’s police force operates and how they deal with the issues of drugs and prostitution. The information included was collected from studies done in both countries on the drug trade and prostitution. This paper also includes data from other sources giving a historical perspective on the drug and prostitution industry of both the Netherlands and the United States. It ends with a discussion of the successes and failures of their policies and how they function in conjunction with the implementation of their respective police forces.

Criminal justice systems all over the world range in their views and acceptance of various social practices such as prostitution and drug use. The laws each country enacts related to the punishment and/or tolerance vary tremendously, and cultural influence in national policy is more prevalent in some countries than others. Two countries in today’s world that are considered to be very progressive are the Netherlands and the United States. Both countries are seen as catalysts for change in policy and law on a global scale. However, they stand far apart on many issues and in some cases are even seen as opposites. This is particularly true when it comes to prostitution and drugs.

Over the last few decades, the Netherlands has become known as a very tolerant and liberal society. Their criminal justice system is innovative and allows for the tolerance of behaviors that are harshly punished in other countries. Generally speaking, the Netherlands is a highly innovative country with a liberal democracy. There are numerous political parties that represent everything from Christian Democrats to The Party for the Animals. Everything from their police and judicial system to their culture and social activities is debated under Dutch law. Despite recent efforts to tighten up on policing and other aspects of their justice system, the Netherlands still remains one of the most tolerant countries in the world. The Netherlands has a centralized national government under which policing is controlled. Some might argue that the Netherlands has a deficiency of authority and, with a high tolerance of normally “illegal” behaviors, it is understandable why people would question how much power the authorities actually exert in their enforcement of the law (Pakes, 2004). They have legalized prostitution, decriminalized the sale and use of soft drugs, and legalized euthanasia and physician-assisted suicide. Many countries in the European Union (EU) fear that the revolutionary culture and policy of the Netherlands may give other EU members a bad reputation. With such radical policies, it is clear why other countries might fear the Dutch influence. However, the overall focus of the Dutch criminal justice system, according to Pakes (2004), is that “[…] it might be beneficial to tolerate small wrongdoings if that prevents more serious offences” (p. 294). This can be witnessed through tolerance of drug use in the Netherlands.

One of the most common misconceptions of the Netherlands is regarding their drug policy. Marijuana is not legal. Drug use is not restricted, but the possession of drugs is an illegal act. Regardless, the Netherlands takes a much more open-minded approach to drug use. They understand that people are going to do drugs and that removing drugs from the country completely is nearly impossible. Therefore, they focus on maintaining public order by getting drug users and addicts off the streets. The Dutch government has organized the drug trade in a way that separates between soft and hard drug use. Pakes (2004) describes:

“The retail end of the enterprise is subject to a policy of non-enforcement when in

accordance with certain criteria that include a maximum limit of sale per customer, no

selling to minors, and no trade in harder drugs such as cocaine or XTC. The idea is one of

separation of markets for soft and harder drugs so that youths in particular can

experiment with cannabis without running the risk of being exposed to more damaging

products at the same time” (p. 295).

One aspect of Dutch culture that is rarely found elsewhere is the presence of coffee shops. Coffee shops are places that sell cannabis products in the Netherlands (mainly hashish and marijuana) and allow you to smoke them indoors. These are unique to the Netherlands and attract drug tourists from surrounding countries. Coffee shop owners must use illegal methods of obtaining the drugs because the wholesale aspect of the trade is not regulated. Coffee shops are prohibited from selling to minors (classified as those under 18). They are not allowed to sell hard drugs and only provide marijuana and cannabis drugs. Customers are permitted to purchase up to five grams each day and coffee shops are only allowed to keep a limited supply of 500 grams in their shop. There is no advertising allowed for coffee shops and they must keep their shop from disturbing the community (Yacoubian, 2007). There may not always be static enforcement of these laws, but they seem to have reasonably successful outcomes. Researchers have noticed a smaller number of heroin addictions and deaths from overdoses. Thanks to rehabilitative care and drug consumption centers, there is also a low prevalence of HIV in addicts in the Netherlands. Drug consumption facilities originated in the 1990s, giving people a safer place to use their drugs and opportunities for rehabilitative addiction care (Wolf, 2003). Since drug use is tolerated, people often assume that the Netherlands has a higher usage rate than many other countries. However, there is a much higher usage rate in Britain than in the Netherlands, which is ironic because Britain’s policies are much more restricting (Pakes, 2004). Their harm reduction society embodies the idea that drug consumers make an active choice to participate in drug use (Goldberg, 2005). The Dutch understand the unlikelihood of getting rid of the presence of drugs entirely, so they focus on harm reduction. It is more important to them to prevent unhealthy behaviors in regards to drug use and minimize the nuisance drug users become when using on the streets. Dutch officials want to keep users as a part of society rather than to become outcasts. The harm reduction system focuses on reducing the number of risks from external factors associated with drug use that are in the government’s power. The Dutch aim to improve overall public health, not cure people of drug use—though they provide those resources as well. The Netherlands gives its citizens the opportunity to make their own decisions before intervening with informational programs. They do not treat users as criminals.

The drug policy shows the progressiveness of the Netherlands in similar way as the legalization of prostitution does. It is a trade that has been questioned in many cases, but a trade that does not scare the Dutch. The main difference between prostitution and marijuana trade in the Netherlands is that prostitution is legal and possession of drugs is not. Prostitution has been a legal industry in the Netherlands since the early twentieth century and brothels have been legal since October 2000 (Wagenaar, 2006). It has also been estimated that there are 30,000 prostitutes in the Netherlands serving an average of fifteen percent of men each year (de Jong, 2009). There are nearly 2,000 window prostitutes in a total of twelve cities nationwide. This means that prostitution can be accessed in many provinces all over the country. Window prostitutes decide on their own prices, but some make as much as 50 Euros per client. Still, the number of prostitutes in the Netherlands is slowly declining because of licensing regulations (Radio Netherlands, 2009). There have been restrictions on the industry, but prostitution itself has never been banned. Workers in the sex industry are protected under general labor laws and are treated like any other type of worker. They have to register in order to work, have labor unions that represent them, and are protected from exploitation (Radio Netherlands, 2009). Human trafficking is an issue for prostitution in the Netherlands with approximately 3,000 cases per year (de Jong, 2009). There is a push to move the minimum age of prostitutes from eighteen to twenty-one or twenty-three in order to protect the girls from human trafficking and other traumatic experiences. Younger girls are more likely to be affected negatively by the industry. Additionally, Amsterdam councilor Lodewijk Asscher wants to shut down the Red Light District from four to eight in the morning because this is a time when more violent and belligerently drunk clients will seek services (Kievit, 2010). The overall goal is to protect and empower the women in the sex industry. In the future there may even be an enforcement of licensing for the prostitutes and registration for workers to keep supervision of the industry less intensive (Radio Netherlands, 2009).

In 2001, a survey conducted by Pakes (2004) estimated that “95% of people in the Netherlands were satisfied with their life situation,” but in 2002, 68% of the sample felt that the Dutch government was not doing enough to combat crime (p. 288). This could mean that a system of tolerance does not appear stringent enough to its constituents. Although policies in the Netherlands are consistent and there is not a lot of change in the foundational aspects of their justice system, they are taking steps to becoming a more structured nation. They work to treat people with respect and dignity, regardless of their criminal history. Policing is an important issue in the election process because more enforcement is promised by most major political parties (Pakes, 2004). There was a time not long ago when the Netherlands became one of the most incarcerative countries in Western Europe. This was due to the fact that they opened fourteen new prisons in a two year time span in order to accommodate the rising number of inmates in the country (p. 286). Thus, it is a fallacy to say that the Netherlands does not punish or crack down on criminals. Still, “imprisonment in the Netherlands today is to a lesser degree justified by a focus on rehabilitation or as a last resort but increasingly by placing emphasis on protecting the public” (p. 288). This is the basis of most criminal justice systems. The Dutch government wants to rehabilitate people who commit crime, but do so in a way that keeps them from disrupting the rest of society. Dutch policy wants to “fix” criminals so they can successfully reintegrate them back into society and prevent future crime from that person.

Not all countries operate as liberally as the Netherlands. The United States is one example of a country that is more aggressive in crime-fighting and uses incarceration as a threat to prevent crime. Their policing system operates in a decentralized manner, allowing states to have control over the enforcement of many of their own laws. The federal criminal justice system functions around the concept of zero tolerance for crime.

In the United States, the possession of even the smallest amounts of drugs is illegal (Yacoubian, 2007). The drug policy in the United States focuses on supply and demand reduction. There have been multiple laws enacted to help regulate the punishments for drug possession, one of which was the Controlled Substances Act of 1970 mentioned by Yacoubian (2007):

“The [Controlled Substances Act of 1970 signed by President Nixon] did, with respect to

criminal penalty, select out marijuana from other drugs and lowered the maximum

penalty for possession of an ounce of marijuana to one year in jail and a $5,000 fine, with

the option of probation or a conditional discharge at the judge's discretion.” (p. 22)

Even though this punishment was reduced from a previous sanction, spending a year in jail and paying a substantial fine is a strict penalty for possession of such a small amount of marijuana. There were four anti-drug bills that were a product of the 1980s leading to a wider coverage of drug and crime control. Sanctions were increased for drug offenses and mandatory prison sentences were attached to mass distribution of marijuana. Drug trafficking crimes also gained higher sanctions with growing awareness of the drug rings worldwide. The quantity of drugs involved was directly related to how severe the criminal’s sentence was. It did not matter whether the act was completed or if there was only an attempt or conspiracy—both situations were treated with the same sanctions. In the early 1990s, more money was provided to increase the amount of drug law enforcement.

Nearly thirty years prior, the Supreme Court ruled that addiction should not be treated as a crime and was instead a serious illness. At this point in time more treatment facilities were opened and addiction was viewed at the same level as a mental illness. The concept of rehabilitation was brought into view in the mid-1960s with the Narcotic Addict Rehabilitation Act. Addicts were committed civilly and reviewed for possibility of rehabilitation. When President Carter was in office, the government viewed drug decriminalization as a state choice (Yacoubian, 2007). That being said, California is currently heading in the direction of decriminalizing marijuana. It is a highly liberal and progressive state, so it is no surprise that they would be one of the first to take this step.

Today, the United States still operates in the mode of zero tolerance. However, it is difficult to track the influence of the criminal justice system on drugs nationwide because each state has its own sanctions for drug possession. One state may punish someone in possession of up to one ounce of marijuana with a $100 fine whereas other states might call that a felony. Sanctions of drug possession in the United States vary from state to state. A study from 2005 showed that almost eight percent of the U.S. population above the age of twelve used illicit drugs within the thirty days prior to the survey, many of these being marijuana users (Yacoubian, 2007).

Another area of concern for the United States is prostitution. There are approximately one million people have worked as prostitutes in the United States (Lowen, n.d.). Only one state condones prostitution by law and that is Nevada. Known for its show girls in Vegas, it is no surprise that Nevada is home to the only legal sex industry in the United States. The prices charged by the prostitutes vary by sexual act. A prostitute providing sexual intercourse for a client will most likely make between $50 and $100. They often work the same number of hours per day as the average businesswoman would, typically five or six days a week, servicing about three to five clients (Dedel, 2006). There is a fear in the United States that legalizing prostitution will be a contemporary form of slavery and that it will open up a larger gateway for human trafficking (Bazelon, 2008).

Many of the places in Nevada where brothels exist are not located in the heart of Vegas and are located in much rural towns. There are only around 500 people working at less than fifty brothels in the area, but many women work as street prostitutes and escorts throughout Vegas (Goldman, 2010).

The United States is seen by many as the most powerful country in the world. However, a country this powerful may be better off using its resources to deal with larger problems. The United States tends to focus most of its energy and money on bringing attention to minor offenses rather than those that seem a higher priority in the public eye. The “war on drugs” and the illegality of prostitution may not be a “war” worth fighting at this point in time.

The Netherlands is a tolerant nation in policing and retribution whereas the United States is, in many cases, narrow-minded and focused on harsh punishments for criminals. Prisons from each of these countries are representative of the differences between their justice systems. Dutch prisons are almost as nice as American college dorm rooms and allow inmates to maintain their dignity. In America, the prison system has a poor reputation for disrespecting inmates and not focusing on rehabilitation, though they receive more government funding than the public school system in most states. Moreover, the Netherlands has a low incident rate of violent crimes compared to the United States. The Dutch look down upon the aggressive criminal justice system of the United States but have reserved pieces of it to be implemented into their own system (Punch, 2005).

Both of these countries take different approaches to dealing with the presence of drugs. One would think that the Dutch drug policy would lead to increased marijuana use and that the American drug policy would cut down the use of marijuana. Though this hypothesis cannot be proved or negated, there have been findings about changes in drug use in these countries. A study showed that, from 1984 to 1996, an increase in marijuana use was found in the Netherlands due to the increase of retail access to the drug. Retail sale of marijuana led to a ten percent increase in use for eighteen- to twenty-year-olds in the Netherlands. Use for Americans of this same age group showed signs of a slight decrease under stricter regulations of the drug (Yacoubian, 2007). Still, there is not enough evidence to say that one approach has been more successful than the other.

Both the Netherlands and the United States apply the concept of community-oriented policing and incorporate basic human rights into their policy. The Dutch apply the organizational aspects of the American criminal justice system. It is interesting to see how the Dutch would take pieces from the American policing system, seeing as they are often considered to be in opposition. Policing in the Netherlands as well as in the United States is becoming more community-oriented and problem-oriented (Punch, 2005). These concepts interested the Dutch when observing police forces in the United States. The United States and the Netherlands both need a strong police force, especially when dealing with drug trades and prostitution. Human trafficking is often a product of the sex industry and both the Netherlands and the United States have had to confront the issue. Whether the trade is legal or not, woman and men are sold into the industry to make money for their “owners.” The amount of money made by prostitutes in both countries is close in range. There is no question that illegal street prostitution is more dangerous than regulated programs that provide certain healthcare services to registered prostitutes. It is hard to say whether legalizing prostitution prevents more problems than it creates, and the same is true for the decriminalization of drugs. No one can prove that legalizing drugs will be better than keeping them illegal, but countries must learn from each other to create a policy that works for them. In the United States, drug policies revolve around the concept of prohibition. They feel that strictly punishing drug offenders will reduce the amount of drug use in their country. The Netherlands operates on a different model. They have kept marijuana and other drugs illegal, but have relaxed drug enforcement in order to focus their attention on other problems. They do not penalize possession or sale of small quantities of marijuana unlike the United States (Yacoubian, 2007).

Having marijuana so readily available in the Netherlands will not, of course, lead to decreased use. The number of people using has actually increased because of the decriminalization. However, many of the problems associated with drug use have decreased because they can be used in a cleaner and safer environment. In the United States, drug users must hide from the law and fear harsh punishments, so they are forced to use drugs in dangerous and unsanitary environments. Still, drug use has remained fairly consistent in the US, meaning that the fear of punishment is not deterring people from using drugs (Yacoubian, 2007).

There are some indicators that the Netherlands is slowly transitioning into a more punitive and commanding government. They are starting to take their public image more seriously and are closing down many of the windows in the Red Light District as well as coffee shops nationwide. Now the Dutch are starting to focus on law and order. Keeping a stable environment is most important to them, though they strive to stay a liberal country. According to Pakes (2004):

“This shift in discourse can be summarized as a conversion from one of crime and justice to one of crime and order in which crime became a public concern, rather than one exclusively for professionals within the institutions of the criminal justice system. It must however be noted that this realignment was subtle and at this stage cannot be said to resemble the American (or British) crime complex.” (p. 293)

That being said, it would not be surprising if the Dutch criminal justice system and the American criminal justice system became parallels. Each country is taking aspects of the other country’s law enforcement strategies to try to better themselves. The United States is slowly becoming more liberal and the Netherlands is becoming slightly more aggressive in their policing and policy making. If the two countries were to collaborate on new policies and brainstorming new ideas for policing, there would be great results. Both are powerful countries in the global community and have much to offer the world.

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de Jong, P. (2009, November 9). Netherlands to crack down on clients of illegal prostitutes.



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http://www.rnw.nl/english/article/netherlands-crack-down-clients-illegal-prostitutes.

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