In 2006, the US American scholar Robert Bohm coined the term of the McDonaldization of the criminal justice system. Bohm criticized the increased influence of managerialism and efficiency on criminal proceedings. It seems that this critique is not limited to the US but is regularly voiced in other criminal justice systems as well. In Germany, for instance, it seems that almost every criminal procedural law reform over the years has triggered the harsh criticism and the fear that a rush disease has taken over. However, where lies the problem? No legal scholar in his right mind would deny that an effective criminal justice system is at the core of a functioning rule of law. Hence, ineffectiveness is synonymous with impunity and strongly linked to the erosion of trust in state institutions among citizens. Effectiveness and efficiency are often used synonymously but the concepts are not the same. While the rather neutral effectiveness describes having an intended or expected effect, efficiency is ‘acting or producing effectively with a minimum of (…) expense, or unnecessary effort.’ With a view to criminal justice, Packer stated already in 1964: ‘By “efficiency” we mean the system’s capacity to apprehend, try, convict, and dispose of a high proportion of criminal offenders whose offenses become known.’
Despite this attempt at a definition, it remains widely unclear until today what exactly defines effectiveness and efficiency in criminal justice. In recent years, a growing number of scientific studies in Germany and the Netherlands have considered effectiveness as an indicator for the functioning and the level of trust of citizens in the police, prosecution and the judiciary. Nevertheless in the public debate effectiveness is often used synonymously with tough on crime approaches, a powerful police and expedient court proceedings. On closer inspection, it proves difficult to define what constitutes the efficient enforcement of criminal law. This can be explained by the fact that criminal justice is situated in a complex system of checks and balances, ranging from constitutional guarantees, defence rights and fiscal restrictions, to the provision of security and crime prevention. Criteria of effectiveness and efficiency, however, are often based on judicial and criminal policy guidelines, which, in turn, are influenced by dynamic political debates, crime trends and risk analysis.
The cases of the Netherlands and Germany
The difficulties of definition set aside, there is little doubt that there exist more effective and less effective criminal justice systems around the world. A comparative perspective can be a useful analytical tool to identify them. By comparing legal and empirical aspects of criminal justice systems one may get closer to an answer to the question of what makes one effective while the other one remains ineffective. Indeed, as always with comparisons, there are numerous methodological and factual pitfalls. The danger of comparing apples and pears, the gap between the ‘law-in-the-books’ and the ‘living-law’, the risk of (legal) cultural ignorance, all these issues have to be taken into account. Hence, case studies have to be selected carefully in order to avoid these pitfalls. Two criminal justice systems that are remarkable great fits for a comparative study with this aim are the Netherlands and Germany, more specifically the system of the German state of North-Rhine Westphalia (NRW). Generally, both criminal justice systems are very similar in the sense that they share a common legal history and follow the inquisitorial tradition with a powerful prosecution system and a three-tier court structure.
Historically and culturally, the Netherlands and NRW are closely intertwined and form one of the most densely populated regions in Europe, with each approx. 18 million inhabitants. Both states share a common 400 kilometer long border, are similar in their population size, demographics and socio-economic composition, with many people living in the highly decentralized metropolitan regions like the Randstad or the Rhine-Ruhr metropolitan region. Despite these commonalities, there are a number of remarkable differences between the two jurisdictions. While the German criminal law is known for being formal and rather doctrinal, the Dutch criminal justice system is strongly driven by pragmatism and efficiency. Hence, the Dutch system is, in many respects, closer to the common law systems of England and the USA. Dutch criminal law is less dogmatically driven and less formalistic than its German counterpart, a fact also reflected in Dutch case law, where a just and – most importantly – workable solution to the problem at hand is often considered more important than systematic coherence. The opposite is true in Germany, where case law is guided by systemic thinking, internal consistency and comprehensiveness of the law.
The comparative perspective
A comparative study of both states needs to deal with at least three core questions:
1. Where can this pragmatism vs. formalism be identified within the Dutch and German legal systems?
2. How do these two legal cultural antagonists influence the law in practice?
3. How does it affect the effectiveness of the criminal justice systems?
The combination of a comparative approach with the question of effectiveness – not to be confused with the question of which criminal justice system is better or worse – makes it a complex endeavour to find an answer to these three questions. Hence, a variety of indicators have to be included in the analysis: empirical data on criminal justice systems (e.g. crime and clearing rates, sentencing, and prison populations), patterns of legal culture, as well as the written law and the law in action.
The image of the Dutch law enforcement as being more pragmatic and efficient may be accurate when it comes to prosecutorial clearing rates. But when one takes into account crime rates and the fact that only about a quarter of all registered crimes ever reach the prosecution services for indictment, this picture becomes more relative. The Dutch criminal justice system, which is based on a high degree of prosecutorial opportunity and pragmatism, is highly selective, while police clearing rates remain remarkably low compared to those in NRW. Similar legal cultural patterns can be observed with regard to criminal procedural practice. Efficiency and pragmatism govern Dutch criminal trials, which are characterized by expediency and a rather flexible interpretation of the immediacy principle. The latter requires that all evidence in a case has to be presented in court. But it comes at a cost: basic suspect’s rights, such as confronting hostile witnesses or gathering exculpating evidence, may exist in theory but are considerably limited in legal practice. A different picture can be painted for German trials. There doctrinal consistency and a strict application of immediacy are guiding principles. There is, however, a risk of impunity and of rewarding those defendants who choose to delay defence strategies.
Similar results can be found concerning the penal system. Low incarceration rates and high prison capacities, in addition to a flexible sentencing system with a variety of alternative sanctions, indicate that the Dutch system is operating rather effectively. It appears that the Dutch system strikes a balance between leniency towards volume crime, particularly drug-related crimes, and harsher sentencing with regard to serious crimes. In comparison, the German penal system seems to be more retributive. NRW in particular is characterized by high incarceration rates compared to the Netherlands and the rest of Germany. Controlling incarceration is mainly achieved by issuing financial penalties and by suspending a considerable number of sentences. Although alternative sanctions exist and in absentia convictions are theoretically possible, they play a minor role in the German penal practice. In comparison, sentencing in Germany seems somewhat anachronistic and formalistic, while the Dutch once again live up to their image of a lenient and progressive system.
Concerns have been voiced that Dutch leniency comes at an increasingly high cost: over the past decades, organized crime groups have become increasingly powerful. Recent events such as the liquidation of the famous Dutch journalist Peter R. de Vries by organized criminals cast a shadow on the countries law enforcement. De Vries had repeatedly called the Netherlands a Narco-State to point to the fact that large parts of the Dutch society have been infiltrated by organized crime. This phenomenon of ‘ondermijning’ has become a popular and controversial topic among politicians and criminologists. This debate is further fuelled by the alarmingly high number of open murders on Dutch streets as a result of an ongoing underworld drug conflict. From a criminological perspective, it remains controversial how the Dutch criminal justice system has played its role in this conflict. After all problems with organized crime groups are not unique to the Netherlands, but exist in an increasing number of EU member states including Germany, although most likely on a somewhat smaller scale.
However, efficiency and effectiveness prima facie are generally shared principles within criminal justice systems. But the example of the Netherlands and Germany, two neighbouring countries with closely related legal traditions, show that the devil is all too often in the detail.
This blogpost is based on : Hofmann, R. (2021). Formalism versus pragmatism – A comparative legal and empirical analysis of the German and Dutch criminal justice systems with regard to effectiveness and efficiency. Maastricht Journal of European and Comparative Law, Vol 28, Issue 4. https://doi.org/10.1177/1023263X211005983
Posted by Robin Hofmann Assistant Professor Department of Criminal Law and Criminology, Faculty of Law, Maastricht University robin.hofmann[@]maastrichtuniversity.nl