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Obraz polityki karnej lat osiemdziesiątych i początku lat dziewięćdziesiątych (1980-1991)
Authors: Jerzy Jasiński
Number of views: 46
The paper is a continuation of the previous analyses of penal policy pursued by Polish courts.
The directions and shape of penal policy are the resultant of many different elements. Analysed in the present paper is the impact on that policy of changes in: penal law; detected crime; and some characteristics of the population of convicted persons.
The 1980s abounded in far-reaching changes of penal legislation. In the years 1980-1981, the tremendous “Solidarity” movement failed to bring about a penal law reform despite the fact that its representatives started intensive work toward that aim, preparing and stimulating others to prepare drafts of such reform. The imposition of martial law secured continued power to the communists; its social costs, however, were extremely high. An item on the bill society were forced to pay was the inclusion into penal law of many elements typical of the law of war which aggravated criminal responsibility. Thus (1) the competence of military courts was extended to various categories of civilians; (2) the application of special modes of procedure was introduced or extended, including the single-instance summary proceedings; (3) many statutory penalties were aggravated; (4) many different categories of acts were penalized which had not been punishable before, including in particular pursuit of trade union activities and organization of strikes and protests; (5) internment was introduced as an administrative form of preventive deprivation of liberty.
The abrogation of martial law resulted in removal of most but not all of the above aggravations. A new tide of severe provisions came with the acts of May 1985 which in fact created a new “martial law” in penal law. It consisted in: (1) extension of applicability of the existing and introduction of new “simplified” modes of procedure which involved limitation of the defendant’s right to defence; (2) aggravation of the statutory penalties for many acts; (3) vast extension of the application of additional penalties; (4) limitation of the applicability of suspended sentences; (5) exclusion of conditional release of multiple recidivists; (6) extension of the conditions of withdrawal of parole.
Therefore, penal policy was shifted twice towards aggravation in the 1980s, the first such shift was made in 1982 and continued with reduced force throughout 1983, and the second one taking place in the years 1985‒1988.
Departure from the over-punitive penal law of People’s Republic of Poland started in 1989 with the emergence of the new political order which created the initial conditions for the building of the Third Republic. In 1989, just the first steps were made, followed by few farther in the years 1990‒1991, towards changing the contens of penal law and reforming the most glaring effects of its abuse. Such steps met with immense difficulties. The attachment to former penal law proved strong: to penal law with indefinite statutory features of situences, with severe penalties which could be accumulated and imposed in the conditions of far-reaching limitation of the right to defence or even by default.
According to an opinion often expressed in official statements, penal policy was to be determined first and foremost by the state of crime. The extent and trends of crime in general and of the separate offences were to “force” the authorities accordingly to shape penal policy. The incessantly growing threat to public order and citizens’ safety, and to social property in particular, was to justify the need for aggravated and accumulated penalties.
Also penal lawyers who noticed the direct relationship between crime and punishment tended ‒ and still tend today for that matter ‒ to suppose that an identical relationship can be found between crime as a mass phenomenon and punishment as a proces of distribution of condemnations through the imposition of penalties by courts.
Yet whatever the relations between punishment ‒ its severity in particular ‒ and crime, they are in fact very weak indeed. This is shown by facts: crime comparable as to extent and gravity meets with most different punishment in different countries. A growth in crime sometimes leaves penal policy unchanged, and at other times results in its aggravation or mitigation; similar are the effects of a decrease in crime. Poland is a good example here: in the 1970s, detected crime was on the decrease but penal policy gained in strictness; in the 1980s, crime went up and the aggravation of penal policy continued. In the first of those decades, the decrease in crime was said to have resulted from the particular shape of penal policy pursued then; in the next one, the need forstrict penal policy was argued to follow from the growth in crime. Never mentioned, instead, was a trend of crime which would actually justify a mitigation of penal policy.
As we know, the extent and also largely the structure of detected crime, that is of crime recorded by the police, is the resultant of many different organizational, legal, and often also political factors. The real extent and structure of crime can hardly be seen through that screen, and its picture is often distorted. In the former “socialist” states, the extent of crime was a political issue: generally speaking, it shaped the way the authorities expected it to shape.
During the 1970s and even in 1980, the number of detected offences ‒ those confirmed in preparatory proceedings ‒ was 320‒350 thousand a year. Starting from 1981, it went up rapidly to 540 thousand in 1984. For the next few years, it was falsely kept at a similar or even somewhat lower level which was to manifest the effectiveness of the drastic statutes of May 1985.
Early in the 1990s, the situation was changed radically: the extent of detected crime was no longer perceived as a political issue regulated as the authorities requested. In the years 1990‒1992, the number of detected offences became stabilized at 860‒880 thousand a year. It is believed to have actually gone up, and it no doubt did go up in the economy-related spheres: the real number of offences against foreign currency and customs regulations, tax offences, frauds, embezzlements etc. was indeed greater.
III. The above-mentioned growth in the number of detected offences was hardly reflected in the numer of persons found guilty in criminal proceedings. There were about 200 thousand such persons a year, and the numer only went down in years when amnesty laws were passed.
Penal legislation provides for different penalties for the separate offences. Therefore, in order to appraise the enhanced or reduced severity of penal policy, it is important to investigate any possible changes in the proportions of those offences throughout the 1980s. In the years 1980‒1991, convictions for crimes (where the statutory penalty is deprivation of liberty for at least 3 years) regularly amounted to 3‒4%, and those for the more serious offences (statutory pelalty of at least 1 or 2 years imprisonment) – to 19‒31%. In the early half of the 1980s, there was a shift towalds a greater proportion of convictions for the less serious offences. The opposite trend could be noticed in the latter half of the decade. Generally speaking, the bulk of convicted persons were guilty of less and less serious offences during the discussed decade, the proportion of convictions for serious crimes remaining rather stable in that period. This trend could be noticed under the statutes of May 1985 which shows how unrelated they were to the real situation in the sphere of crime, and how much they depended on other factors such as e.g. the ruling elites’ desire to have their revenge on society for the events of 1980-1981.
The situation changed in the years 1989‒1991 when the proportion of persons convicted for the more serious offences started to go up rapidly.
This sole element considered – that is, the structure of crime – were penal policy stable throughout the years l980‒1988, there should have been more and more sentences to penalties not involving deprivation of liberty, and the length of inprisonment should have been reduced. In the years 1989‒1991, instead, a greater number of longer immediate prison sentences could be expected.
The most severe, of all penalties provided for by Polish law is capitol puishment. In the years 1981‒1982, there were 3‒4 valid sentences to that pe- nalty a year, the number going up to a dozen or so in the years 1984‒1986. The common courts imposed death penalty for homicide only. Since 1988, not a single valid sentence to death has been imposed by those courts (though it was imposed by invalid sentences in isolated cases). This de facts abolition can be hoped to persist, especially as the new draft penal code does not provide for capital punishment.
The death penalty has first of all a symbolic sense; it is difficult to say why the authorities insisted on rejecting all the postulates for its abolition. Instead, the basic instrument that determines the punitiveness of the Polish penal system is unconditional deprivation of liberty. Penal policy of the 1970s had few good points; one of them was a limitation of the use of that penalty, noticeable at the end of the decade. This trend was further intensified in 1981 when 19% of those found guilty were sentenced to immediate imprisonment. Under martial law and in the period of its suspension, there was a slight shift away from that policy (2l‒22%). It was finally abandoned in the years 1984‒1986: in 1986, 30% of those found guilty were sentenced to immediate inprisonment. In 1988, the policy-makers came back to their senses, and re-orientation of penal policy was started: sentenced to immediate imprisonment were 21% of those found guilty. This proportion went further down to 18% in 1989, but then proceeded to rise again in the years 1990‒1991 (19‒20%). The above-mentioned change in the structure of crime in those years considered, this fact cannot possibly be seen as evidencing the aggravation of penal policy. The imposition of unconditional deprivation of liberty evolved in a way that is worth mentioning here. In the latter half of the 1970s, the number of sentences to that penalty became stabilized at 190-200 per 100 thousand of adults, a great improvement compared to the early half of that decade (228‒273 per 100 thousand of adults). In the 1980s, the number of unconditional prison sentences went further down to about 150 per 100 thousand of adults, barring the period of validity of the acts of May 1985 when it again exceeded 200. Thus on the whole, the range of imposition of immediate impressonment was further reduced – a most satisfactory development.
As regards the length of that penalty, that is the term to be spent in prison, there has been little improvement. Prison terms of under 1 year, considered short in Poland, still constitute a mere 8‒13% of all sentences to unconditional deprivation of liberty. Thus nearly 180 persons per 100 thousand of adults in the years of validity of the statuts of May 1985, and about 130-140 in the other years were sentenced to prison terms of at least one year, the number only going down to somewhat less than 100 in the years when amnesty laws were passed. Instead, the incidence of sentences to long prison terms of at least 3 years remained relatively stable: sentenced to that penalty were 30‒40 persons per 100 thousand of adults.
The length of sentences can also be considered from a different angle, i.e. that of the average length of the discussed penalty. In the years 1980‒1991 the average length of unconditional prison term was practically unchanged and amounted to 24‒25 months (barring the year 1985 when it nearly reached 27 months).
Therefore, the following trend emerped: the imposition of immediate imprisonment is gradually limited but its average length remains at a practically unchanged level. It is an extremely high level at that, the fact considered that the bulk of offences for which the Polish offenders were convicted involved the lower statutory penalty of 6 months deprivation of liberty at most.
Of the greatest importance among the reactions to an offence which do not involve deprivation of liberty in Poland is the penalty of conditional deprivation of liberty. Its incidence went up rapidly under martial law (from 29% in 1980 to 37% in 1982) and remained at a high level for the next few years. It is only recently that the proportion of such sentences has been reduced to its original level.
There is a great variety of shapes this particular penalty can assume: it can be combined with fine, supervision, and various duties imposed on the person sentenced to that penalty, and also with additional penalties and payment to the injured person or for a public purpose. In the years 1980‒1984, it was very often combined with fine (7l‒78% of cases). This proportion went down in the next years (to 55‒60%) which was however accompanied by an unusual growth in the imposition of additional penalties, such as in particular confiscation of property and forfeiture of things, and also of payment to the injured personor for a public purpose. In the years 1989‒1991, that is after abrogation of the states of May 1985, the proportion of cases where fine was imposed together with conditional deprivation of liberty again went up to two thirds of all cases of imposition of that penalty. (The amount of fines will be discussed further on).
The penalty of limitation of liberty, introduced by tle 1969 penal code, had some problems fighting its way into the practice of criminal justice. In the latter half of the 1970s, though, its proportion among the bulk of penal measures became stabilized at 12‒14%. The same trend could be noticed in the years 1980‒1981. The aggravation of criminal responsibility under martial law resulted in reduction of sentences to that penalty (to as low a level as 7% in 1984). Instead, the next aggravation introduced by the statutes of May 1985 led to a growth in both the number and proportion of sentences to limitation of liberty. Surprising as it may seem at first sight this development can be explained by the fact that by force of the provisions adopted in 1985, that penalty could be imposed in proceedings by penal order, i.e. in the absence of the defendant. His objection to the decision admittedly rendered the order invalid, but he was not protected by the ban on reformatio in peius.
In the years 1989–1991 the proportion of limitation of liberty in the bulk of penal measures imposed went down to the extent of rendering that penalty unimportant. In 1989, it was imposed on 7.4% of those found guilty; in 1990 – on 3.5%; and in l991 – on a mere 2.7%. In the 1990s, the relative incidence of imposition of the separate forms of that penalty started to change rapidly. Deduction from the remmeration for work was imposed on 53% of persons sentenced to limitation of liberty in 1989, on 38% in 1990, and on 21% in 1991. Unpaid supervised work came to the foreground (34, 56, and 78% respectively) while referral of the convicted person to work practically disappeared (l3, 6 and, 1% respectively).
Fine as a self-standing penalty has never been extensively imposed in Poland as opposed to the situation in many other penal systems, the West European ones in particular. Late in ten 1970s, the proportion of fines became stabilized at 11–13% and remained unchanged throughout the early half of the 1980s. It then proceeded to go up a little in the years 1986–1988 (15–16%), and stopped at 13–15% in the years 1989–1991. The proportion of fines can be expected to grow in the future, mainly at the sacrifice of conditional deprivation of liberty combined with fine.
As important as the length of a prison term is the amount of a fine imposed. The repressiveness of fines can be appraised through reference to the average monthly wages in socialized economy. Compared to them, the average fines under the 1969 code evolved significantly. The use of fines was intensified in two parallel ways. First, their imposition together with deprivation of liberty grew more and more frequent (up to 69% of all persons sentenced to a prison term in 1980). Second, the amount of fine was raised (to 2.5 times the monthly wages in 1980).
Important changes in this respect took place in the 1980s. In the early half of the decade, the accumulation of fines with deprivation of liberty was further extended (to 75% of prison terms in 1984). On the other hand, the relative amount of fines went down (to about 1,5 times the monthly wages in socialized economy). This situation changed radically with the introduction of the statues of May 1985 which involved a drastic raise in the amount of fines (in the years 1986–1987, to about 4 times the average monthly wages in the case of fines as additional penalties combined with deprivation of liberty, and to 2.5 times – in the case of self-standing fines).
A next far-reaching change took place in the years 1989–1991. The relative amount of fine went down to about 0.5 time the monthly wages – a considerable reduction of repressiveness, even the general impoverishment of society considered.
One of the penal measures introduced by the 1969 penal code is conditional discontinuance of criminal proceedings. It can be applied to first offenders guilty of the less serious acts whose guilt is self-evident. The measure was appllied by the public prosecutor in nearly 90% of cases, and by the court in about l0% of cases only. Like unconditional deprivation of liberty, conditional discontinuance of proceedings can be seen as a specific gauge of aggravation or mitigation of penal policy. With growing severity of that policy, the proportion of persons sentenced to unconditional prison terms goes up, and that of conditionally discontinued proceedings goes down. Is penal policy mitigated, the above proportions are reversed. In the years 1981, 1988, and 1989–1991, proceedings were conditionally discontinued in 24–30% of cases where the suspect was found guilty. Under the special martial law legislation, the proportion was 19–20%, and under the acts of May 1985 – 16–19%.
The remaining penal measures, that is additional penalty imposed as the main one, application of educational or corrective measures to persons aged 17 and guilty of misdemeanours, and renouncement of carrying out of the sentence, were used extremely seldom in spite of the considerable possibility of their application (the first two in particular). In the days when those in charge of criminal justice aimed at aggravation of responsibility, there was little room for its mitigation with the use of such measures.
The years l980–1988 were characterized first and foremost by a tendency to aggravate penalties. After a short break in 1981, that tendency continued until 1989 when the first changes coul be noticed. In both cases, the period of reorientation of penal policy was too short to yield any farther-reaching changes. In the structure of penal measures, the aggravation of responsibility was expressed mainly in the growing proportion of sentendes to immediate imprisonment and the limited use of conditional discontinuance of proceedings and limitation of liberty when no special procedural provisions incited the use of those measures.
The penal policy pursued in the years 1989-1991 was deeply rooted in the practices of people’s Republic of Poland; to be more exact, the trends of that period still today if in a mitigated form. The 1989–1991 mitigation took place on different planes: the legal one, through removal of the specially punitive and glaringly unjust provisions, on the plane of application of law through many small mitigations of penalties which add to a significant whole, and also through a radical reform of prison policy. But the actual mitigation does not go beyond the achievements of “Solidarity” of 1981. As a result, too many and too long sentences of immediate imprisonment are still imposed, and penal measures (imprisonment and fine in particular) are too often accumulated. Briefly speaking, Poland still has the style of punishming shaped after the penal code in force and its interpretation made in the 1970s. A radical abolition of this style and mitigatin of penalties still remains to be done, although the first steps have already been made by now (the virtual abolition of the death penalty and reduction of the amount of fines).