In a Q&A session of the House of Representatives (Tweede Kamer) last September, the Dutch minister of Safety and Justice, Ivo Opstelten, said that ‘There is in the Netherlands no class justice and that is what this cabinet stands for’. He responded to questions about cuts in subsidized legal aid. The Council of State (a constitutionally established advisory body) advised to reconsider the plan because it risks impeding the right to access to justice, which follows from the Constitution and international charters. In some cases the own contribution to legal aid more than doubles. This would particularly affect the most vulnerable people (those with the lowest income) and thus impede their options to take cases to court.
Several parties – the Socialist Party (SP), the Democrats 66 (D66) and GreenLeft – asked the minister whether he was going to reconsider the cuts:
Mister Schouw (D66): […] The House [of Representatives] has warned several times for class justice as a result of creating barriers for ordinary people to obtain their rights. Could the minister for once name two or three concrete measures of the cabinet that prevent class justice in the Netherlands?
Minister Opstelten: I can be very clear about that: we do not have to take measures because there is in our country no class justice. Period. There is no small example whatsoever of class justice. There is in the Netherlands no class justice and that is what this cabinet stands for.
Unfortunately it is not rare for ministers to ignore advice coming from the Council of State and other advisory bodies. Nor is it to refute and ignore concerns from oppositional political parties. A week before, minister Opstelten was also questioned about class justice, now concerning the decision to settle a case of corporate crime (illegal banking, tax fraud, money laundering; they settled for a total of 35 million euros). The Socialist Party asked whether the minister thought that ‘buying off prosecution can be qualified as class justice, due to the fact that the possibility for buying off is reserved only for people with a lot of money’. As expected, the minister did not agree that settling is a form of class justice.
It is not surprising that the government denies that class justice exists. What strikes is the certainty with which the minister states that there is no class justice in the Netherlands, ‘period’. Criminologists and legal commentators regularly express concern that the government violates basic principles such as the non-discrimination principle (elsewhere I have expressed my concern that current policies are not only ‘fact-free’ but also ‘principle-free’). As for class inequality in the justice system, we have at this moment no clue because there is virtually no attention for this topic.
The term ‘class justice’ is pretty much absent from current Dutch criminology. The last serious study was carried out by criminologist Ben Rovers in 1999. Rovers examined various indicators for selectivity based on socioeconomic status throughout the chain of decisions, from law making to sentencing. There is much we don’t know, he concluded, but based on the available studies Rovers finds that in some decisions the evidence for class justice is weak, but in other decisions it is strong, sometimes even very strong.
For example, over the decades (from the 1960s to the 1990s) attention for white-collar crime certainly has increased. For instance, specialized police teams and greater expertise have ensured that the more complex financial-economic crimes are brought to court. Criminologist John Braithwaite also points out that the regulation of business ‘grew and grew and continues to grow’, but it grows outside the domain of criminal justice. This probably is also the case in the Netherlands. The problem of class justice thus may not be manifest in whether crimes go uncontrolled, but in how they are responded to: by way of internal regulation or by way of public prosecution and punishment. It may not be recognized as a problem of unequal justice, but considering that the consequences (criminal record, stigma) are very different, it should.
One indicator for class justice that Rovers describes is that decisions of the Public Prosecution on pre-trial detention and whether or not to prosecute are related to socioeconomic status. The latter decision involves the option to offer a settlement: wealthier suspects are not necessarily more often offered to settle the case but they are more likely to be able to accept the offer and thus have more options to ‘pay off’ prosecution. Exactly the point that was raised last September. There is no reason to think that this form of class justice has gone away, as the public prosecutor has in fact more options now to settle a case. The answer of the minister of Justice thus is anything but reassuring, not least because he seems so certain that class justice does not exist.
Photo (an old official sign of the ministry of Justice) by Shirley de Jong on Flickr