A failed attempt to radically reduce inter-court sentencing disparities by legislation: Empirical evidence from Poland
| Author | Kamil Mamak,Joanna Dudek,Maciej Koniewski,Daniel Kwiatkowski |
| DOI | http://doi.org/10.1177/1477370820952729 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
https://doi.org/10.1177/1477370820952729
European Journal of Criminology
© The Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1477370820952729
journals.sagepub.com/home/euc
A failed attempt to radically
reduce inter-court sentencing
disparities by legislation:
Empirical evidence from
Poland
Kamil Mamak , Joanna Dudek,
Maciej Koniewski
and Daniel Kwiatkowski
Jagiellonian University, Poland
Abstract
Sentencing disparities are widely covered in the literature on common law countries. In
comparison, the literature on sentencing disparities in civil law countries is less extensive, and the
literature is even more scarce in post-communist countries. Nevertheless, sentencing disparities
exist in all of these countries. One of the goals of the 2015 criminal law reform in Poland was to
limit sentencing disparities. This study compares trial outcomes from before and after the reform.
We examine files from district courts in 13 cities in Poland for two offences: drug possession and
drunk driving. Our findings demonstrate that there are significant differences in sentencing across
courts, even in courts that are situated in the same city. The reform has changed the structure of
the punishments but has not radically reduced sentencing disparities.
Keywords
Sentencing disparities, Poland, post-communist countries, sentencing
Introduction
The justice system should treat the same offence in the same manner. In the Polish legal
system, ‘equality before the law’ is a constitutional rule that is valid not only in the law-
making process but also during the application of the law (Tuleja et al., 2019). Equality
Corresponding author:
Kamil Mamak, Faculty of Law and Administration, Department of Criminal Law, Jagiellonian University,
Olszewskiego 2 Street, Kraków, 31-007, Poland.
Email: kamil.mamak@uj.edu.pl
952729EUC0010.1177/1477370820952729European Journal of CriminologyMamak et al.
research-article2020
Article
2022, Vol. 19(5) 1165–1187
is fundamentally tied to the principle of justice (Katzner, 1973: 89); therefore, we should
strive for consistent adjudication in the legal system. One of the purposes of the Polish
criminal law system reform in 2015 was to reduce sentencing disparities.
Sentencing disparity refers to differing sentences assigned for similar offences and
similar offenders (Austin and Williams, 1977: 306). Some variation in the treatment of
criminal offenders is desirable, and few people argue for identical judgments for crimes
without considering the offender’s criminal record or the circumstances of the crime
(McFatter, 1986: 150). However, treating similar crimes in completely different ways
may be perceived as unjust (McFatter, 1986: 150).
In the US, differences in criminal sentences that are not justifiable by legally pre-
scribed criteria are a problem that has interested many researchers and politicians. One
proposal to mitigate this problem was to introduce sentencing guidelines (Kramer and
Ulmer, 1996: 81). Reducing sentencing disparities between judges was a key goal of US
criminal justice system reform (Scott, 2010: 3).
In Europe, the problem of sentencing disparities is also a concern of researchers, and
significant research has been undertaken on the issue in common law (Pina-Sánchez and
Linacre, 2013; Pina-Sánchez et al., 2017) and West European countries (‘Sentencing and
Disparity: A Comparative Study’, 1994; Hodgson and Soubise, 2016; Monsieurs et al.,
2011). Drápal (2020) argued that the limited knowledge in the research community on
sentencing disparities in post-communist countries is due to the sparse literature pub-
lished in English on the issue. His research focused on sentencing disparities in the Czech
Republic. There are no recent publications on the issue of sentencing disparities in
Poland; however, one recent study focused on sentencing practices in Poland after the
fall of communism (Krajewski, 2016).
There are many possible reasons for unjustifiable disparities in sentencing and adju-
dication, but they are all connected with one key term: judicial discretion. Where there is
discretion in decision-making, there will always be disparities. The nature of the law
itself implies a need for interpretation. The law is written in legal language; nevertheless,
it is based on natural language, which is ‘open-textured’ (Hart et al., 1994; see also the
polemic article by Schauer, 2011). Philosophers of law have contemplated the issue of
judicial discretion for decades (Caytas, 2012; Kelsen, 2009) but the most significant
discussion is the debate between Herbert L.A. Hart and Ronald Dworkin, which has been
continued to this day by their followers (Dworkin, 1963; Hart et al., 1994; Himma, 1999;
Mallett, 2014; Ranchordás and De Waard, 2015; Raz, 1998; Steiner, 1976; Vila, 2013).
The central issue in the discussion is not the existence of judicial discretion, but its scope.
There are two fundamental principles that are in perennial conflict: the individualization
of justice and its consistency (Krasnostein and Freiberg, 2013: 265).
Disparities in sentencing among judges can be caused by various factors, both exter-
nal (for example, different paths of education or local customs in different courts) and
internal (for example, morality). Discoveries in the field of decision-making and cogni-
tion have revealed possible differences among people linked to cognitive errors and heu-
ristics (Kahneman, 2013; Tversky and Kahneman, 1974), which have also had an impact
on legal studies (Goldstein and Hogarth, 1997; Posner, 2010; Stelmach et al., 2016).
Therefore, researchers have attempted to identify possible means of limiting the impacts
of judicial discretion (Fuller and Winston, 1978; Richards, 2011).
1166 European Journal of Criminology 19(5)
To continue reading
Request your trial