Sentencing disparities in the Czech Republic: Empirical evidence from post-communist Europe
| Author | Jakub Drápal |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
| DOI | 10.1177/1477370818773612 |
| Subject Matter | Articles |
https://doi.org/10.1177/1477370818773612
European Journal of Criminology
2020, Vol. 17(2) 151 –174
© The Author(s) 2018
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DOI: 10.1177/1477370818773612
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Sentencing disparities in the
Czech Republic: Empirical
evidence from post-
communist Europe
Jakub Drápal
Charles University, Czech Republic
Abstract
Although there is an extensive literature on sentencing disparities in common law countries,
there have been only a few empirical studies in continental countries and virtually none in post-
communist ones. This article presents findings from the Czech Republic, which show that there
are important disparities in post-communist Europe, comparable to those in the USA before
the introduction of sentencing guidelines. I employ a multi-level modelling approach to study the
sentencing practices in Czech district courts for the three most common offences. The values of
intra-cluster correlation are found to be between .066 and .178 for the various models, which
is considered high. The specifics of civil law post-communist countries are further discussed in
relation to choosing appropriate ways of reducing disparities.
Keywords
Czech Republic, post-communist countries, sentencing disparities
Introduction
Do judges and courts differ in the way they set sanctions? Many studies have suggested
that they do (for reviews, see Pina-Sánchez and Linacre, 2016; Sporer and Goodman-
Delahunty, 2009). It is natural that, where there is discretion in decision-making, unwar-
ranted disparity appears. My key question is thus not whether these disparities exist, but
how significant they are and how they might be reduced. In this paper, I explore whether
there are significant sentencing disparities in a post-communist continental setting, spe-
cifically in the Czech Republic.
Corresponding author:
Jakub Drápal, Faculty of Law, Charles University, Nám. Curieových 901/7, Prague 1 116 40, Czech Republic.
Email: jakub.drapal@gmail.com
773612EUC0010.1177/1477370818773612European Journal of CriminologyDrápal
research-article2018
Article
152 European Journal of Criminology 17(2)
There are various possible approaches to studying sentencing disparities. Existing
research on the extent of sentencing disparities can be clustered into four major groups,
which look at disparities from the perspective of (1) differences between courts, (2) dif-
ferences between judges, (3) legal factors, and (4) the offenders’ extra-legal
characteristics.
Studying differences between courts has been one of the most popular approaches
(Pina-Sánchez and Linacre, 2013). The main reason for this, albeit a very pragmatic one,
is that it is hard to do otherwise: it is often impossible to identify particular judges (so as
to be able to study differences between judges) and the information on which the judges
based their decisions is frequently not available either. The result is that many studies
have resorted to examining inter-court disparities in sentencing, in the USA, Canada, and
England and Wales (for example, Fearn, 2005; Johnson, 2006; Pina-Sánchez, 2015;
Pina-Sánchez and Linacre, 2013; Reid, 2014; Weinstein, 2006).1 Some of those studies
have also considered the impact of court district characteristics on sentencing.
In a few cases, differences between judges have been studied, notwithstanding the
complexity of doing so. In the US context, judges were found to have been responsible
for 5 percent of variation in sentencing in 1999–2000 in Pennsylvania (Johnson, 2006),
6 percent in the 2000s in Massachusetts (Scott, 2010) and 17 percent across the United
States in the 1980s, subsequently reduced to 11 percent by the introduction of sentencing
guidelines (Anderson et al., 1999). Several studies have looked at whether the judge’s
personality influences sentencing. Sentencing philosophies (Hogarth, 1971; Sporer and
Goodman-Delahunty, 2009) and religious affiliation (Myers, 1988) have been found to
play a role. The impacts of the judge’s race (Johnson, 2006; Spohn, 1991; Steffensmeier
and Britt, 2001), gender (Spohn, 1991; Steffensmeier and Hebert, 1999) and age
(Johnson, 2006; Myers, 1988) are unclear; various studies have arrived at different
conclusions.
The third approach investigates whether disparity arises from different assessments of
the numerous legal factors that influence the sentence. Examples of such factors are
previous convictions (Roberts and Pina-Sánchez, 2015; Roberts and Von Hirsch, 2010),
sentencing for multiple offences (Vibla, 2015) and aggravating or mitigating factors
(Pina-Sánchez and Linacre, 2014; Roberts, 2014).
Lastly, many studies have examined the impact of offenders’ extra-legal characteris-
tics, which should not influence sentencing. The offender’s race, gender and age (for
example, Daly and Tonry, 1997; Koons-Witt, 2002; Steffensmeier and Demuth, 2006;
Steffensmeier et al., 1998), and less obvious factors such as the offender’s attractiveness
(Sporer and Goodman-Delahunty, 2009), have been found to play an important role.
The vast majority of the studies I have mentioned focused on measuring the level (or
extent) of sentencing disparities, as I do in this paper; other studies have focused on why
sentencing disparities exist and how judges arrive at their conclusions (for example,
Hutton and Tata, 2002; Tata, 2002, 2007). This is not, however, the focus of this paper
and thus I do not go into further detail about this aspect of the theory of sentencing
disparities.
This paper is structured as follows: I begin by discussing civil law research on sen-
tencing disparities while paying specific attention to post-communist countries. I then
examine the Czech legal context, present my methodology and results, and conclude
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