Opinion: Conditional release

POSTED: 11/21/13 1:27 PM

The draft criminal code is a product that has the fingerprints of former Justice Minister Roland Duncan all over it, though it would be unfair to shove the shortcomings entirely onto his plate alone. There are fifteen other suspects in this game: the Members of Parliament who supported the draft and gave it their nod of approval in May of last year.

Earlier we reported already about the disastrous decision to take article 28 out of the criminal code. That article gave convicts with a life sentence the right to a review after twenty years. The Constitutional Court shot down this decision. As things stand now, it is no longer possible to impose life sentences in St. Maarten until the government (or the parliament) repairs the law – and that could take a long time.

Another issue that went through the grinder at the Constitutional Court was the system for conditional early release. That the penitentiary system has capacity problems is no secret. The prison is full and the authorities are scrambling to find space for its inmates. The draft criminal code offered solutions, but these solutions have also been nullified by the Constitutional Court.

One article contains the basic rules for conditional release. Someone with a sentence of not more than one year for instance qualifies for early release after a detention of at least six months, plus one third of the rest. In other words: a 12-month prison sentence could end after 8 months (6 months plus one third of 6 months). Is the sentence longer than one year, early release is possible after serving two third of the time.

However, the new criminal code aimed to introduce additional rules for early conditional release – a possible answer to the shortage of cell capacity. But the solution did not sit well with the Constitutional Court at all. This is why.

Foreigners with a sentence below five years could qualify for early release after serving only one third of the time. This would apply to illegal foreigners that served at least nine months. For instance, a Colombian drugs smuggler with a 48 month-sentence to his name could therefore be out of jail after 16 months.

The draft code exempted from this rule: “those who commit another crime here (in St. Maarten – ed.) within ten years after a verdict (against them – ed.) has become irrevocable, and “inmates with the French or another non-Dutch nationality who during their release are residents of the Collectivité de Saint Martin and who have established themselves there for an indefinite period of time.”

Illegal foreigners with a sentence above five years would have been not that lucky, had the article passed muster at the Constitutional Court because the justice minister and the parliament wanted to exclude this group entirely from conditional release.

For foreigners with a legal status and for subjects of one of the countries within the Kingdom with  a sentence longer than five years the rules would have been different. They would only qualify for conditional release “if they have lived here (on St. Maarten –ed.)and for the duration of the conditional release a steady and acceptable place to live.”

The Ombudsman took these articles for review to the Constitutional Court on the grounds that they violate article 16 of the Constitution. This article prohibits discrimination and guarantees equal treatment. The government contested that position, saying that distinguishing different groups of inmates is justifiable because it serves a legitimate purpose.

Granting illegal foreigners early release is justifiable, the government reasoned, because they will have to leave the country upon their release, while local inmates would return to the society.

Excluding illegal foreigners with a sentence above five years from conditional release is also just, the government reasoned. The legitimate objective in this case is decisive action against illegally residing in St. Maarten and against nuisance caused by illegals. “St. Maarten must not become a country where foreigners get the impression that they are able to commit serious crimes and affect safety and security in the society without having to bear the consequences by not serving the full sentence.”

The Constitutional Court found that only one article could pass muster: a rule that the justice minister can grant early release for inmates that are closest to completing their sentence when the state is confronted with a shortage of cells for executing other sentences.

But the other rules failed to pass the bar. The Constitutional Court did not see why illegal foreigners with a sentence below five years would qualify for early release, while this option does not exist for those with longer sentences.

The court furthermore criticized the exceptions based on repeated criminal offenses, because it is unclear whether this refers to similar crimes, only to unconditional sentences or also to fines.

Excluding Dutch citizens and foreigners with a legal status from conditional release if they do not have a steady and acceptable place to live also did not pass muster, because it makes an unacceptable distinction between residents and non-residents. Especially the distinction solely based on residency between Dutch citizens and legally residing foreigners and non-resident Dutch is not objectively justifiable, the Constitutional Court ruled.


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