How can society be protected from prisoners who continue their criminal activities whilst in prison, and who may continue to pose a security risk even after their release? This question was central to a major exploratory study carried out by Erasmus School of Law in collaboration with the University of Groningen, commissioned by the Scientific Research and Data Centre (WODC). The researchers, including Sanne Struijk, Professor of Penal Law at Erasmus School of Law, conclude that the Netherlands already has a comprehensive set of measures in place to deal with this group of high-risk prisoners involved in organised crime. However, it remains unclear whether these measures are actually effective. This makes the research relevant to anyone wondering how far the government may go in restricting individual freedoms to make society safer, and when that line is crossed.
Many measures, little certainty
The study shows that, in recent years, the Netherlands has already implemented many measures within the criminal justice system to mitigate the risks posed by high-risk prisoners. For example, the criteria for placement in the extra-secure institution (EBI) have been broadened, and new intensive supervision units (AIT) have been introduced for prisoners deemed to require a strictly secure and controlled regime, but for whom the EBI is considered slightly too restrictive. Strict restrictions apply within these regimes, such as the four-eyes principle for visits, limited opportunities for communication with the outside world – including with lawyers, during whose visits visual supervision is maintained. Cooperation between the Custodial Institutions Agency, the Public Prosecution Service and the police has also been improved, partly through the Detention Intelligence Unit, which monitors criminal networks.
Following detention, there are also legal options for placing a (former) high-risk prisoner under supervision. These are the behaviour-modifying and liberty-restricting measures (GVM), whereby a judge may, upon sentencing, rule that a person may be placed under supervision after serving their sentence if, and for as long as, is deemed necessary from a preventative perspective, and conditional release (VI), whereby part of the prison sentence is served outside prison subject to conditions, and that (supervised) period may be extended indefinitely. However, in practice, neither of these measures appears to be working optimally for this specific group. They were largely developed as generic measures and do not adequately address the characteristics of high-risk prisoners. Furthermore, since 2021, the VI period has been reduced to a maximum of two years, which, according to experts, may lead to long-term prisoners, including high-risk prisoners, choosing to serve their full sentences in order to avoid supervision. This could prove counterproductive to a safe reintegration into society.
Another issue is risk assessment. At present, there is no suitable tool for accurately assessing the risk posed by this specific group of prisoners. Existing tools have been developed primarily for individual violent offenders, whereas the risk posed by high-risk prisoners is, in fact, closely linked to their position within a criminal network, involving factors such as loyalty, power and available resources, which are difficult to measure.
The study addresses three main questions. Firstly, it examined whether the current Dutch sanction arrangements, detention regimes and supervision options are sufficient to enable this group of prisoners to return safely to society. It also investigated the measures employed by ten other Western countries, including Canada, Italy, Sweden, Norway and the United States, in relation to this target group. Finally, it explored which additional measures might be possible and desirable for the Netherlands.
The impetus for the study stems from two earlier reports. The first is the report on the Italian 41-bis detention regime, written by Struijk and colleagues in 2023, which showed how Italy completely isolates prisoners with links to organised crime in order to prevent further criminal activities from being carried out from within their cells. The second is a 2021 report by ABDTOPConsult, which raised the question of whether the Dutch system of preventive detention, particularly the ‘tbs’ measure, is adequate for individuals deemed dangerous who do not suffer from a mental disorder. In response to both reports, the government decided to commission a study into ways of better protecting society from high-risk prisoners. These are prisoners involved in organised crime who, due to their power and resources, are able to continue their criminal activities whilst in detention.
What are other countries doing?
For the international part of the study, an exploratory analysis was carried out to examine how ten western countries deal with this target group. This revealed that preventive detention, detaining someone for a longer period on the basis of an assessed future risk, is rare internationally and is strictly limited by human rights treaties such as the European Convention on Human Rights. Such measures must be foreseeable at the time of sentencing, must not be applied arbitrarily, and require realistic opportunities for treatment and rehabilitation. This is difficult in the case of organised crime offenders, as their risk is less individually determined and more difficult to treat than, for example, in the case of violence or sex offenders.
Only three countries, the United States, Italy and Sweden, have a prison regime specifically designed for this group of high-risk prisoners. In the United States, these are extremely isolated ‘supermax’ prisons such as ADX Florence, the effectiveness of which has not been scientifically proven, but which are socially and legally controversial due to their high costs and human rights concerns. Italy has the 41-bis regime, which is specifically designed to sever links between prisoners and mafia organisations, but which has been criticised because, in practice, prisoners are rarely downgraded to a less restrictive regime. Sweden employs a less stringent model with its Fenix unit, where placement is regularly reviewed and there is greater scope for personal contact and a daily programme.
Canada stands out positively in the study. The country uses a classification system for criminal networks, known as Security Threat Groups, and is the only country studied to have developed a specific reintegration programme that uses cognitive behavioural therapy to try to reduce criminogenic factors among this target group. Canada has also developed the most structured risk assessment tool for this group, the Multi-Level Guidelines for Group-Based Violence. Incidentally, this tool has not yet been fully validated and is not yet being used in Canada itself to inform specific placement decisions; however, according to the researchers, it does offer a valuable starting point for further development.
All in all, the ten countries studied do not offer a ready-made solution to the challenges facing the Netherlands. In fact, the Netherlands appears to be at the international forefront in the development of preventive measures in this area.
Evaluate first, then pioneer
It is precisely this leading position that makes further steps particularly precarious, the researchers conclude. As other countries do not provide a model on which the Netherlands can base its approach, the Netherlands would have to pioneer such measures itself if it were to further tighten its policy. This is a sensitive issue, as such measures are all too easily associated with further restrictions on the fundamental rights and freedoms of detainees, whilst it is not certain whether these measures actually contribute to a safer society. The researchers therefore conclude that new, far-reaching measures such as additional forms of preventive detention are currently premature and risky. It must first become clear whether the recently introduced and tightened measures, such as the extension of the EBI and AIT and the amended VI period, actually work in practice. Hence the title of the research report: Precarious Preventive Pioneering.
The need for further knowledge
The researchers therefore recommend first thoroughly evaluating the effects of existing measures, and only then assessing whether there is a need for further preventive measures. In addition, they call for further research into the factors that contribute to the successful reintegration of this specific group, into a better risk assessment tool, and into how decision-making regarding placement and de-escalation within the EBI and AIT can be organised in a more structured manner. In this regard, they recommend further studying the Canadian approach in particular, and closely monitoring developments concerning preventive detention in Sweden over the coming years, where a form of preventive detention was introduced last April, partly in relation to the group of high-risk prisoners.
The research therefore does not offer a ready-made solution, but it does provide an important warning and a clear direction. Risks associated with high-risk prisoners will never disappear entirely, but, according to the researchers, they can be managed more carefully by continuing to seek a good balance between security and the responsible reintegration of this group into society, rather than losing sight of reintegration in favour of ever-increasing security measures. Struijk emphasises: “Some of these high-risk prisoners will inevitably return to society after serving their sentences. And it is precisely this society that stands to benefit from this being done carefully and through risk-informed policy, underpinned by scientific insights.”
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Lees het volledige WODC onderzoeksrapport hier.
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