Archiwum Kryminologii (Archives of Criminology)

5-26

Authors: Danuta Janicka

The article presents the views of three prominent thinkers regarding criminal punishment: Romuald Hube (1803–1890), the father of Polish criminal law, Juliusz Makarewicz (1872–1955), the most distinguished interwar Polish lawyer, and Władysław Wolter (1897–1986), the founder of the Krakow school of criminal law. A presentation of the ideas on punishment developed by these masters of Polish jurisprudence provides an overview of the evolution of criminal law and political-criminal thought in Polish lands over the course of a century. Citing selected fragments from the works of the three professors, the Author examines how they interpreted punishment, what they believed its role to be, and what theories of punishment they put forward; moreover, which specific sanctions they supported. The article also assesses the language and discursive style of these leading lights of Polish legal science. Romuald Hube represented the classic school of criminal law. He published his Ogólne zasady nauki prawa karnego (General principles of the study of criminal law), a rudimentary, systematic interpretation of criminal law, at the age of 27. He was one of the first scholars in Europe to promote a mixed theory of punishment, inspired by Hegelianism and combining the idea of retribution with the preventive aims of punishment. Juliusz Makarewicz was a representative of modernism, the leader of the sociological school of criminal law, and the father of the first penal code in independent Poland. He made his reputation in 1906 with the publication of a work on the philosophy of criminal law. He published a broad range of dogmatic and historical studies, textbooks and a commentary on the 1932 Polish penal code. Makarewicz proposed an absolute justification of punishment, yet he saw retribution as ultimately preventive, nolens volens developing a mixed theory of punishment oriented towards specific prevention. Władysław Wolter was a student of the last eminent exponent of the classic school in Poland, Edmund Krzymuski (1851–1928), and at the same time a representative of normativism. He dealt mainly with general issues in criminal law, particularly criminal science. After the introduction of Makarewicz’s penal code, he immediately published his first textbook. He continued his academic career after the war all the way into the 1970s. Wolter adopted a modernist position within penal science and indicated the need for purposive punishment within the bounds of justice; he was therefore also a supporter of a mixed theory of punishment. Although all of the named professors promoted or embraced a mixed theory of punishment, their approach to the penal system differed to some extent. Hube gave priority to imprisonment, which he strongly believed to be important and effective. Makarewicz questioned the effectiveness of imprisonment and proposed a broad array of protective and probation measures, in addition to non-prison punishments. Like Wolter, he espoused the idea of two-track penal repression, i.e. a system of penalties and protective measures in response to criminal offenses. None of the named scholars rejected capital punishment outright, although all of them distanced themselves from it and hoped that it would be abolished in the future. Hube saw death as an exceptional, rarely used sanction. Makarewicz still foresaw no possibility of removing it from the catalogue of punishments due to the needs of criminal policy – he saw capital punishment as a deterrent, thus a general preventive measure. Wolter denied that it had any such impact, arguing that capital punishment did not deter offenders and was only a protective measure. As for monetary fines, Hube believed them to be appropriate only in the case of petty crimes, although he rejected confiscation of property as a sanction that affected the convict’s family. Makarewicz accepted fines, although he pointed to their limited impact and inequality. Wolter wrote in a similar vein, expressing an ambivalent attitude toward this legal sanction, revealing the inequality of its burden given convicts’ differing material status and recommending different legal solutions when it came to this type of punishment. The excerpts from the works of the great masters of Polish criminal science cited by the Author also allow us to see how the language and style of criminal science has changed. Hube was the father of Polish legal language. His analyses were mainly conducted in a philosophical and historical vein. Makarewicz employed a rhetorical style, often emotional, making legal comparisons. Wolter perfected his arguments, often highly abstract, relying mainly on logic and dogmatics. All three scholars were quite familiar with European legal theory and drew on its achievements.

71-116

Authors: Łukasz Wieczorek

The article discusses some of the findings of research carried out in 2008–2012 on forced labour in Poland. The research was done using triangulation methods and consisted in an analysis of seven criminal cases concerning human trafficking with a view to forced labour examined by Polish courts and prosecutors’ offices in 1998–2012. Interviews with experts and practitioners working to eliminate human trafficking (29 interviews) and with victims of forced labour in Poland (4 interviews) were also conducted. I also used a content analysis method to study press articles on forcing people to work in Poland and forcing Poles to work abroad that had appeared in the Polish press in 1997–2012. A total of 224 press articles were examined. Another source of information about forced labour in Poland, or rather about the social perception of this phenomenon, consisted in qualitative field research done in 32 localities across eight Polish provinces. This included a total of 137 conversations and interviews.The findings indicate that the problem of forced work doubtless exists in Poland, although it is difficult to gauge its actual scale. At the same time the phenomenology of forced labour that I present indicates that there are many aspects to forcing someone to work. Those who fall prey to forced labour include both Polish nationals and foreigners (Poles are generally forced to work abroad, while foreigners are subjected to forced labour in Poland). The age and sex of the victims is also irrelevant, as both young and middle-aged persons and both men and women are forced to work. There are many ways of recruiting and then of forcing one to work. In fact, it would be hard to enumerate all the methods employed by perpetrators to make their victims work. It is therefore impossible to indicate any specific group of people that would be particularly prone to this practice, as anyone can become a victim. The same goes for branches of the economy – it is impossible to indicate any one area that would be particularly susceptible to exploitation and forcing individuals to work. Research findings indicate that in Poland forced labour occurs in agriculture, construction, shipbuilding, textiles, sales, and services (particularly housework). Drawing on B. Andress’s idea of the continuum of exploitation (B. Andrees, Forced labour and trafficking in Europe: how people are trapped in, live through and come out, International Labour Office, Geneva 2008), I discovered that when it came to forced labour in Poland there was a distinctive succession of phases at play before people were actually forced into labour. In other words, ‘employers’ used various types of violence, threats or ruses to test the employee’s susceptibility to exploitation, trying to find out to what extent they could make the person work harder, while at the same time increasing the conditions of enslavement eventually resulting in forced labour. This finding is important when it comes to the scope of the legal provisions penalising human trafficking and forced labour in Poland. In their current wording, these provisions do not include behaviour such as progressive exploitation.My research clearly shows that Polish law enforcement and work inspection agencies have difficulty identifying cases of forced labour. Cases were often discovered by accident or by a coincidence as a result of which police agencies received information about a particular situation. Another weak spot in the identification of such cases is the lack of police intelligence about work agencies bringing foreign workers to Poland, particularly from Asian countries. Another issue is the lack of any regulation that would clearly and unequivocally penalise forced labour. The field research seems to indicate that law enforcement officers, prosecutors and judges are not familiar with the phenomenology of forced labour and do not always consider it a form of human trafficking, particularly when the victims arrived in Poland via legal channels and/or were not sold. The ineffectiveness of the Polish system of eliminating forced labour and human trafficking is another problem due to the lack of joint action by law enforcement and the judiciary. The ineffectualness of law enforcement agencies isn’t only due to poor organisation and lack of human resources, but also due to a lack of instruments and procedures for detecting these kinds of crimes. Finally, low social awareness of the problem and social consent to people being exploited in the work setting are another aspect making it difficult to eliminate forced labour in Poland. The awareness of the foreigners themselves is another issue. They often come to Poland looking for work and agree to poor working conditions, hoping to earn more than in their home countries.

149-176

Authors: Monika Kotowska

‘White collars’ are perpetrators who do not fit the image of a ‘typical criminal’. They are often esteemed and enjoy a high position in society, while their crimes are part of the professional sphere and often occur ‘on the margins’ of legal activity. They also include people who – unlike ordinary criminals – risk losing their prestige, reputation and professional position. Their criminal activity is often seen as a mistake or omission, rather than as an intentional violation of the law. It would seem that ‘white collars’ are not a large group and that their crimes are not easily detected. They are not viewed as dangerous offenders who should be isolated. This is due to their personal traits, their modus operandi and the nature of their crimes, particularly as the latter are hard to detect, as well as to the fact that they have better access to high-quality legal aid than their less educated and wealthy counterparts. In prison, ‘white collars’ form a group which is difficult to define because of their small number. However, taking into account that Poland has seen a drop in the number of criminal offense in recent years, with a concomitant rise in the number of economic crimes, the number of ‘white collars’ in penitentiary facilities will surely grow steadily, particularly if a punitive criminal policy is pursued. From the viewpoint of criminal science, ‘white collars’ remain an unstudied phenomenon in Poland. Nor are there any studies of how ‘white collars’ cope with the conditions of life in prison. Looking for answers to these questions, the Author approached the authorities of one of the largest (the third in size) penitentiary facilities in the Olsztyn region with a request to access the prison archives. She examined the archival prison records of individuals who had served a sentence of imprisonment between 2005 and 2015 in order to identify a group of ‘white collars’. The selection criteria were as follows:- Final conviction for an economic crime/crimes- The crime was committed in connection with the person’s professional activity- Holders of a university/higher degree - Having a stable legal source of income.Individuals fulfilling the above criteria were considered as belonging to the category of ‘white collars’. It was found that during the period in question only two inmates detained at the facility matched the criteria, which justified further qualitative research. A case study was then conducted based on the archival personal records, parts A and B, which the prison made available to the Author. The Author looked specifically at documents like court sentences along with their justification, parole decisions made by penitentiary courts, probation reports, psychological opinions, as well as notes compiled by the inmates’ supervisors based on conversations with them. Because both of the inmates were serving their sentences within the framework of a programme system, the scope and nature of their personal programmes, including any updates, were also assessed. The records provided a glimpse into the perpetrators’ social and demographic status, including their financial and family status, as well as an overview of their previous life in society and, finally, in penitentiary conditions. The qualitative research undertaken by the Author did not make it possible to draw general conclusions, particularly since the cases studied were so few. But one can compare the studied perpetrators to the ‘statistical’ or ‘typical’ inmate doing time in prison. The literature on the subject indicates that most such inmates are single, young, unemployed, without work habits, they have gaps in their education, are alcohol or substance abusers and come from difficult homes. In prison, they lack external support, which makes their later social adaptation more difficult.The perpetrators studied as part of the research described here were much older and better educated than ‘typical’ convicts. They were relatively well-off, with stable incomes, and came from non-pathological homes. Their families were also evaluated positively by probation services, the police and neighbours. Before their stay in prison they had been involved in community initiatives, they were good husbands and fathers, active in the local community and the Church, without alcohol or substance abuse problems. While serving their sentences they received support from family and figures of authority esteemed in the local community. The Prison Service considered them well adapted to prison conditions, calm, often rewarded, obeying the rules, active, highly respected by other inmates, willingly performing unpaid work in behalf of the penitentiary facility and cooperating with the prison administration. The research material presented only represents two cases; it therefore does not make it possible to draw general conclusions, yet it does highlight certain problems and areas for further research. At the same time it is for the Author a point of departure for reflection on the legal and judicial level of sentences against ‘white collars’ and the way such sentences are enforced.

197-230

Authors: Kamil Miszewski

In his 1940 book, The Prison Community, Donald Clemmer introduced the term ‘prisonisation’ into criminal science. This notion expresses the view that as the inmate continues to serve their sentence, their mental and physical health sees a continual decline; the inmate becomes more and more involved in destructive activity as part of the prison subculture, prisons as such being responsible for these negative developments. Erving Goffman, who coined the term ‘total institution’, speaks in a similar tone, describing prison as a place where the individual self is forcibly remoulded. We could also add Gresham Sykes to this group of theorists, with his conception of the ‘pain of imprisonment’, i.e. types of deprivation that every inmate experiences while in detention. But are these gentlemen not exaggerating? Does the prisoner really stand no chance of adapting to imprisonment in a way that would leave his or her mental and physical health intact?The European Committee on Crime Problems, set up in 1957, is an organ of the Council of Europe. It has drafted many international agreements and European conventions, including Resolution 76/2 on the Treatment of Long-term Prisoners, adopted by the Council of Europe Committee of Ministers on 17 February 1976. The resolution draft was preceded by a report from two years of research on, inter alia, the consequences of long-term imprisonment, including psychiatric and psychological studies. As Elżbieta Janiszewska-Talago writes, the psychiatric studies indicated that after 4-6 years of imprisonment inmates were subject to the occurrence of a functional psycho-syndrome which could be called the isolation syndrome, leading to overall decline of intellectual function, lower concentration, stereotypical and monotonous reactions, and loss of one’s sense of reality. The occurrence of this syndrome depended on the personality of the inmate, their age, how long they had been detained, and the routine (rules) followed in the penitentiary facility. The longer the term of imprisonment and the more intense the isolation, the more the nervous defence mechanisms of the inmate deteriorated and the symptoms enumerated above became more frequent. Yet, as Janiszewska-Talago continues, the psychological research indicated quite the contrary. ‘It did not discover any case of loss of overall intelligence that would be proportional to the length of time spent in prison, in fact to the contrary – a statistically significant improvement was noted. Meanwhile motor reactions had declined and a significant drop in the averages pertaining to extraversion was reported. As a result, no mental decline was found to have occurred among long-term prisoners, nor was there any advanced deterioration of cognitive function or personality traits during the time in prison’ (Janiszewska-Talago 1980: 39). In light of these discrepant findings, the Committee concluded that the consequences of long-term imprisonment depended on the convict’s personality, the social circle they belonged to in prison, their opportunities to interact, develop and make decisions regarding themselves as well as the strictness of the rules followed in the prison. Since the 1960s there has been ongoing discussion in English-language literature regarding the harmfulness of imprisonment (it continues today [Hulley, Crewe, Wright 2015]). To my knowledge no one has yet unequivocally proven that such harmfulness is the case. What is striking, moreover, is that the condition of many long-term prisoners actually improves. This does not mean that mental or physical deterioration never occurs, but no one really knows what factors are responsible. Laying the blame on long-term imprisonment is a shortcut, an oversimplification that proves true every once in a while, seemingly at random. I try to present a comprehensive overview of the large body of works on this subject. At the end I present my own findings from research on long-term prisoners carried out in Polish prisons. Although my research did not relate directly to the issue of the harmfulness/harmlessness of long-imprisonment (I studied inmates’ ways of adapting to prison conditions over the course of at least 20 years, their involvement in work, study, ways of spending free time, strength of attachment to family, relations with prison staff and many other issues), yet is casts a certain light on the problem.

249-272

Authors: Maria Ejchart-Dubois, Monika Markowska

According to Polish Penitentiary Service statistics, there were 2131 women serving sentences in Polish prisons as of January 2016, 400 of whom had been convicted for homicide. 13 were serving life sentences. The article describes our research on three women who were the first to be sentenced to life imprisonment in Poland and have already served 19 years of their sentences. During this time, each was transferred to another penitentiary facility at least a couple of times, and changed cells and cellmates several times. Each encountered several dozen educators, psychologists, wardens, and prison directors. This long period also saw significant changes in their family status. The places where they were confined and the people they had met impacted the way each functioned in prison. Our research consisted in an analysis of court records: the sentences, expert, psychiatric and psychological opinions, as well as other documents produced during the course of criminal proceedings, including media reports and prison records (personal file B). Open interviews with the women were a vital component of the study – we met with each inmate at least once and conducted a three-hour interview at her place of detention. The study was carried out between May 2015 and February 2016.By analysing the material collected, we created a criminal profile of each of the women, who had spent the last 19 years in prison. We described the evolution of their attitudes towards the crime and the trial, as well as their outlook as it had evolved throughout their time in prison; their life goals, and the influence of external circumstances (such as their place of confinement and the type of contacts each had with the outside world) on their lives and life plans. It proved extremely difficult to say who these women are. They have not confessed to the crimes for which they were sentenced and have spent a great part of their lives in prison, living without the prospect of being released at any specific time. Their functioning in prison does not match any of the adaptation strategies described in the literature on the subject. The aim of our research was also to determine the purpose of life imprisonment. The question becomes particularly important as the date approaches when these women, the first to be sentenced to this extreme form of punishment, will acquire the right to apply for parole. Our analysis of the way these women have been serving their life sentences shows that Prison Service officers consider the main purpose of life imprisonment to be isolation. This view is not surprising, yet one must ask whether after 20 years in prison one would not do well to reconsider the hierarchy of goals that are to be served by imprisonment. It is beyond doubt that the way the women have been serving their sentences has been influenced by their attitude to the crime and by the fact that none of them had ever admitted her guilt. At the same time none of them denies her responsibility as a participant of the event. Because none of the women studied had ‘killed someone with her own hands’, they are in a convenient psychological position. They do not have to come to terms with having deprived another human being of life, although they do not deny their complicity. Their attitude to the committed crimes might prove decisive when applying for parole. Our research does not provide unequivocal answers to the questions we set out to answer, yet it proves that serving very long sentences should involve planning. The way the women function shows that they themselves largely organise their time in prison, seek work as well as educational, cultural and sports opportunities. The restraint shown by the prison authorities in offering such activities comes from the fact that a life sentence means that working with this category of inmates can always be put off till later. This was evidenced by the vague and general formulation of the goals each of the female inmates had in her individual programme. The place of detention is another important factor when it comes to quality of life in prison. Penitentiary facilities differ in terms of their architectural arrangements, the conditions of imprisonment, but also in terms of the types of activities offered, the possibility of taking up work and study, and the relations between prison staff and inmates. By observing their attitude today, we can conclude that each woman has put her time in prison to a different use. We don’t know what the prison administration and penitentiary court will make of this when the convicts apply for parole. To assess whether the inmates have changed it will not be enough to examine their behaviour and the number of times applications were put in to reward or punish them. We need intensive work with the inmates, in-depth observation and an examination of their personalities, which should be carried out by a qualified psychologist. Yet such opinions are lacking in the penitentiary records of the studied inmates. It is difficult to plan an adequate course of action without assessing the inmates’ current deficits and needs. The studied women each chose a different path for herself. M.R. is succumbing to unconscious degeneration and resignation. She is calculating; she knows how to survive in prison, yet she deeply resents this place. M.O. is the most uncertain and emotionally unstable, one doesn’t know what to expect of her, but as long she does not absorb the attention of the prison staff, they show little interest in her. M.Sz. is the ‘safest’ from the standpoint of the Prison Service; her attitude often evokes surprise that one can be doing so well in prison with a life sentence. One might get the impression that she is acting, but is it possible to pretend for almost 20 years?Because life imprisonment has no fixed term, it seems rational to treat it as a chance to improve one’s life, even if one never leaves the prison walls. This task requires making the inmates feel responsible for every possible area of their lives. Each of the examined women put the opportunities available to her to a different use. The quarter century after which they will be able to apply for a court review of their punishment is a long time, which they, for most part, have not taken full advantage of.

315-338

Authors: Małgorzata Dziewanowska

GUS (Polish Central Statistical Office) statistics indicate that around 3.5% of children born in 2014, that is some 13,000 children, were born to teenage mothers. Out of this number, around 50-60 children were born to 13-14-year-olds, which means that the pregnancy had resulted from a criminal offense. These figures are also due to the decreasing age of sexual initiation among youth, a low quality or absence of sexual education in schools, as well as limited access to information and family planning. The current legal framework and circumstances also impact the condition of young women who get pregnant while in the care of rehabilitation centres. It is difficult to find comprehensive publications devoted to teenage mothers – girls who were placed in a youth care or a juvenile centre due to having committed a criminal offense or because of profound demoralisation – that would discuss both the legal issues and practical solutions applied in different centres. The problem is an important one, however, because it highlights systemic shortcomings when it comes to supporting mothers and babies in such institutions as well as the vast room that is left for violations of children’s basic rights, such as the right to be brought up by one’s biological parents and to maintain an unbroken emotional bond with them. The article examines the legal status of teenage mothers and the practical solutions applied at different rehabilitation centres. The aim is to present all the possibilities of helping teenage mothers in the care of youth care centres or juvenile centres, who are going through crisis and require external support, for example in the form of basic legal provisions and solutions regarding the placement and stay of juveniles in rehabilitation centres, the types of rehabilitation measures available or subsequent public help for young women leaving such centres. The Author discusses Polish legal provisions designed to protect motherhood as well as a range of important issues related to juvenile pregnancy, such as school duty or access to medical services. Also discussed are the state’s most recently adopted measures to support motherhood, showing a need to provide additional aid for this group of beneficiaries, with particular emphasis on access to benefits for juvenile mothers living in rehabilitation centres. The article also presents practical solutions introduced by the staff at different centres, aiming to fill the gaps in the law when it comes to acknowledging the bond between a biological, though juvenile, mother and her child, which often isn’t appreciated enough. The featured examples are drawn from information collected by Po DRUGIE Foundation which helps former residents of rehabilitation centres, as well as from ethnographic research carried out for a current project to set up a care institution for juvenile pregnant women and juvenile women with children, allowing them to continue their rehabilitation beyond a centre. The article highlights numerous state measures to provide multi-faceted support for motherhood and parenthood in Poland, while at the same time pointing to the systemic discrimination of girls from juvenile centres, who are thoughtlessly deprived of the chance to take responsibility for their children or, if given such a chance, lose the support of the institutions obligated to resocialise them. The Po DRUGIE Foundation project aims to fill these gaps, both in the law, by developing provisions to provide care both for juvenile mothers and their children, and on the ground, by setting up an institution dedicated to this group of recipients.

369-389

Authors: Piotr Chomczyński

The aim of the article is to present a number of methodological conclusions drawn in the course of research on social stigmatization. The Author discusses the methodology of a social experiment involving the use of photographs as part of open interviews and focus group study. The photographs of people had been selected according to a pre-determined set of criteria and were used to elicit responses shedding light on how the subjects associated a person’s physical appearance with an alleged propensity for committing crimes. The use of photographic material made it possible to discover the real views of the subjects – often contrary to those they claimed to hold prior to seeing the visual materials. One may therefore assume that within the strictly controlled conditions of the experiment, iconography played an important role in demystifying stigmatizing behaviour. The goal of the experiment was to determine factors and processes that are normally hidden and which, although natural and part of our observation spectrum, for obvious reasons are subjected to political correctness and usually not voluntarily revealed. The rules of social co-existence require us to obey certain norms and often to conceal what we really think and act upon. This does not mean that the said factors are insignificant. In my view, they are often decisive and lead to cognitive dissonance whenever our beliefs and actions diverge. In the case of the said experiment, a discrepancy was observed between the attitudes of the subjects before and after they were confronted with the photographs. They exhibited more spontaneous behaviour and statements, there was also a change in their opinions and they produced all sorts of evidence and examples which in their view supported their newly revealed ideas. Studies of open interview and focus group techniques lead to the conclusion that visual materials can add to these techniques, making them more ‘friendly’ and balancing the asymmetrical relationship between subject and researcher while also making it easier to extract information subject to social taboos. In the study under discussion, the photographs were a catalyst in getting the subjects to reveal opinions they had previously largely concealed. Yet it must be borne in mind that the experiment requires a careful selection of appropriate photographs so that the subjects do not form new opinions but only reveal those already held yet not expressed. Otherwise these types of studies will not shed light on existing phenomena but rather create new ones, which leaves an ethical question mark when it comes to the purpose of such studies. It is worth adding that the experiment corresponds to various processes occurring in our world, including various ethnocentric and xenophobic movements, today on the rise. The logic behind the experiment seems universal enough to allow its application in studying the perception of other social groups at risk of marginalization and stigmatization. I am thinking particularly of the great migrations of today which are changing the ethnic face of Europe.