Archiwum Kryminologii (Archives of Criminology)

31-73

Authors: Monika Płatek

Dwa razy Lombroso [Twice Lombroso] considers differences in the diagnoses and conclusions pivotal to criminal law and to criminal and social policy by way of a specific example. It would seem that so long as we rely on an accepted research paradigm, we are equipped to verify not only the validity of a theory, but also the social consequences of explaining pathological behaviour and criminality in a particular way. The story of Saartjie “Sarah” Baartman illustrates how positivist and feminist methodologies in criminality result in very different views of reality. The latter forces us to consider issues that have so far been ignored in the criminological literature. The genesis and evolution of criminology has clearly contributed to the development and modernisation of criminal law theory. Discarding the theory of free will has forced theoreticians to confront social realities when considering the creation and application of the law. What has gone unnoticed, however, is that criminology has also helped justify the creation and application of special criminal law institutions from the outset. Racism, racist practices, and the exclusion of certain groups in order to show authority and justify curtailing liberties under the pretext of having to ensure safety and social order have all been vindicated and cloaked in academic respectability with the assistance of criminology. Nowadays, it is often tempting to think that there is such a thing as safety from birth or through osmosis. On the one hand, this sometimes justifies creating separate institutions with the word “criminology” in the name. On the other hand, under the pretext of treatment, therapy or eliminating threats, it can justify maintaining institutions that greatly contribute to the arbitrary exclusion of individuals who are instrumentally exploited or deemed troublesome in order to show strength or demonstrate political efficiency. The text does not attempt to create a dichotomy of good and bad criminology. It is not about demonstrating that positive criminology is archaic and feminist criminology up-to-the-minute. It is rather a scholarly reflection on knowledge standards and on the consequences and hazards that flow from recognising a given claim as scholarly. The text, then, is merely a reflection on what characterises the feminist approach to criminology and what this approach contributes to the discipline. It also attempts to look at the beginnings of the evolution of criminology from a feminist criminological perspective. By illustrating how the work of Lombroso can be examined, described and appraised in terms of positivist and feminist criminology, I try to show how different descriptions of the reality (pathology) of criminality can be arrived at depending on whether we study it on the basis of positivist criminology or whether we also approach the problem from a feminist perspective appropriate for criminology.

109-132

Authors: Michał Peno

Much has been written recently about the problem of justifying punishment in the context of anthropological determinism and incompatibilism. However, the problem of the relationship between determinism, on the one hand, and the theory of punishment, on the other, is multi-dimensional. This article focuses on criminal responsibility in a world of determinism. It is mostly an attempt to review the basic concepts and issues in the philosophy of responsibility and compare them with the concepts and issues of the criminal law as broadly defined. The starting point is the observation that if the thesis of determinism is true and it is not possible to reconcile determinism with human freedom, then it will be particularly difficult to justify punishment. Prima facie, this applies to retributionism, although a more thorough analysis leads to the conclusion that various utilitarian approaches will also have to be significantly modified to allow for determinism. Punishment can obviously implement certain goals and be useful in some way without necessarily being just (it can even be cruel and/or immoral). Punishment may be formally fair (like revenge) and constitute “an eye for an eye.” However, if people do not have free will, then they are not responsible for their misdeeds. This is problematic as they do not deserve revenge and their behaviour does not merit condemnation. However, it is possible to apply different measures which are closer to the sui generis of preventive measures. This paper attempts to demonstrate that there is a link between criminal punishment and moral responsibility. This follows from the fact that punishment is marked by moral condemnation and only a morally responsible person can be condemned. Excluding moral responsibility therefore makes it impossible to condemn a perpetrator. The distinguishing feature of, and (indirectly) the moral justification for, criminal punishment are thereby eliminated. In particular, from a retributionist viewpoint, punishment can only be justified if the wrongdoer is morally responsible for his/her actions (in the sense that he/she can be accused of having upset the moral order). If the perpetrator is not morally responsible, it is difficult to morally justify the legitimacy and practice of punishment. Furthermore, the premise about moral responsibility is a prerequisite for justifying punishment in any case involving the notion of guilt. A lack of moral responsibility in a world ruled by determinism does not necessarily mean that people should not be punished for wrongdoing. Nor does it mean that there are no arguments in favour of maintaining the practice of punishment. The basic question is what views – empirical or emotional – should be given priority in the science of criminal law. The answer lies in the demand for minimalism in the criminal law and for a reflective analysis of the foundations of criminal responsibility.

163-225

Authors: Maria Niełaczna

Research conducted to date shows that prisoners classified as “dangerous” do not include financial offenders, white collar workers, or people convicted for causing death by dangerous driving. Prison authorities reserve this special category for prisoners convicted of crimes involving violence and/or firearms and/or crimes described by the courts in their judgements as “brutal” and indicative of psychopathic and impulsive character traits that render rehabilitation impossible. Prisoners regarded as “dangerous” include those who are unpredictable, “the worst of the worst,” those deemed depraved and impervious to rehabilitation, and those who commit further crimes and engage in risky conduct in defiance of prison rules while incarcerated (escaping, associating with opponents of the penitentiary system, refusing to obey prison guards etc.). Academic literature and reports from prison guard organizations show that super-maximum (supermax) facilities enable inmates described as highly predatory and destructive to prison order and management to be handled. However, the same sources point out the negative side effects of the high economic, legal and moral costs of maintaining these facilities and managing their inmates. Prison populations have always had aggressive and “hard to manage” individuals, but the idea of managing them separately did not occur until the 20th century. Criminological studies provide the criteria for identifying risk and the methodology for assessing it. These have enabled the key concept of “serious threat to social security or to the security of the penal facility” to be understood. This is the only circumstance under which a prisoner should be classified as “dangerous.” There are two aspects of what “serious threat” means. On the one hand, the phrase denotes those factors that depend on the convict and which the convict can control and modify. On the other hand, it denotes those factors that depend entirely on the measures adopted by the prison authorities who implement and shape them. These range from ensuring an appropriate prison environment to employing user-friendly management and control methods. The responsibility for attenuating risks does not rest solely on the prisoners, but also, if not primarily, on the correctional officers and the system they create. That a prisoner is incorrigible is no justification for labelling him “dangerous” and keeping him in isolation and maximum security for the duration of his sentence. The machinery of the state, with all its experts, academic and practical knowledge and a budget to fund it all, has to be more knowing and better equipped than an individual prisoner, who only has unstable emotions and weak self-control mechanisms at his disposal and/or is bent on self-destruction. When the state fails to offer a solution acceptable to all parties that have an interest in the “dangerous” status, then it is weak and will remain so. As such, it is incapable of protecting its officials and the public from violent individuals. Research I conducted in 2012-2013 reveals that the systemic problems in dealing with this particular category of prisoner are tied in with questions regarding restrictions on personal freedom, protection from arbitrary, and consequently inhumane, treatment, and the limits of administrative discretion. One persistent systemic problem is that decisions to extend “dangerous” status, which should normally be assigned for as short a time as possible and only when necessary to protect other constitutional values (Article 31 Section 1), are justified formulaically. Prison authorities fail to prove that prisoners are likely to behave in a way that could pose a serious threat to the security of the public or the prison. Their justifications mask their real reasons for extending isolation time in designated units and present no facts either for and against. This is a sign that the state is acting arbitrarily. My research also reveals that the protection of “dangerous” prisoners on the part of the courts is weak. In fact, the courts are failing to effectively protect their basic rights. This is particularly important, as it turned out that prisoners were kept in maximum security facilities for an average of three years, which is emphatically not “as short a time as possible” and is considerably longer than the 12 months specified in the General Director s Order of 5 June 2012. Maximum security units and having “dangerous” prisoners managed separately are intended to ensure that the community inside and outside the prison is safe. The conditions in these special units shape the range and kinds of options for managing “dangerous” prisoners and containing the real and potential threats they pose. The theoretical and practical options are limited to a minimum, while strictly specified security procedures do not allow prisoner management to be adjusted for the kind of threat, the level of risk or the extent to which a prisoner is “dangerous.” The conspicuous isolation of maximum security units, the hermetically sealed space with constant electronic surveillance, the reporting and security procedures, the strained atmosphere where people only ever come together for formal interactions, and the limited number of personnel with authorized access to these units are redolent of a fish tank. This analogy should help people understand and almost experience how it feels when a natural human environment is replaced with an unnatural one. The restricted living space in a fish tank can be easily controlled, while water slows down impulsive movements and neutralizes, or at least weakens, any dangerous outbursts that might occur. This artificial and hermetic environment has a deleterious effect on human beings. When deprived of oxygen, our brains die, along with some aspects of our functioning. In the case of “dangerous” prisoners, the role of oxygen is played by having a modicum of autonomy to alleviate their sense of powerlessness and some influence over their “dangerous” status, but most of all, connection with other people - some form of social contact. My research concludes that these are all systemic mistakes in managing “dangerous” prisoners that have yet to be rectified. Despite the good living conditions in the designated units and the efforts undertaken by prison staff, who are on the front line working with this difficult category of prisoner, there is no framework for properly assigning the status of “dangerous”.

259-278

Authors: Grzegorz Kudlak

The many restrictions in force in a closed institution make prisons taxing and oppressive places for their inmates. Imprisonment is associated with a great deal of internal conflict and a deprivation of needs. This increases stress and psychological discomfort. This situation is often beyond the adaptation skills of convicts, prompting them to engage in a set of behavioural patterns known as prisonisation. In the process, prisoners accept norms and values that are specific to prison communities, including deviant attitudes and rituals that stand in opposition to the goals of rehabilitation and express rebellion against the institution of prison. People addicted to narcotics and psychotropic drugs have an additional motivation, viz. the possibility of obtaining drugs, to live the “double life” of prison. Research shows that incorporating specialized addiction treatment into prison programs is conducive to rehabilitation. This raises the question as to whether this therapy could effectively control prisonisation as well. The author’s own survey of prisoners who were treated shows that their hierarchy of values were significantly different six months later. This change can be regarded as developmental and indicative of successful rehabilitation. This could serve as evidence that positive therapeutic results encourage prison inmates to find constructive ways of dealing with imprisonment, reducing stress, reflecting on their conduct and understanding that their time in prison is a consequence of their actions. In this context, addiction therapy in prison may well be an effective means of preventing prisonisation.

293-323

Authors: Agnieszka Gutkowska, Michał Fajst

The cultural diversity of people serving custodial sentences in Poland is an issue that requires intensive research and analysis. In theory, the number of foreigners in Polish prisons might not seem great enough to warrant the interest of either researchers or practitioners. There are said to be around 500 such people (in custody and provisional detention) annually in a population of approx. 80,000. It has to be borne in mind, however, that the presence of people with a completely alien, and therefore often incomprehensible, cultural code in such a closed environment as a penal institution poses a great challenge, despite their small numbers. This article discusses the results of research conducted on foreigners in selected Polish penal institutions in 2014. The methodology involved analysing case files and conducting in-depth interviews with Prison Service officials and employees as well as the foreign prisoners themselves. These examinations attempted to determine, inter alia, the extent to which the cultural differences that incarcerated foreigners bring with them affect the status of foreigners serving custodial sentences and the way penal institutions function, and how well adapted the Polish prison system is to dealing with people from other cultures. One of the aspects discussed is the issue of accommodating foreigners given custodial sentences. This is analysed from the standpoint of possible cultural differences. According to the current legislation, foreigners are subject to the same rules as Polish prisoners when serving their sentences. The officials who were interviewed stressed that the rules for accommodating foreigners in detention centres and penal institutions are no different from those that apply to Poles – and nor should they be. As the interview progressed, however, these same officials would give examples of situations where the cultural differences of incarcerated foreigners affected e.g. the way they were accommodated in their cells and certain additional difficulties they had in adapting and relating to the prison subculture. Therefore, in practice, despite the lack of regulations and/or recommendations from above, these officials are forced to respond to the additional challenges resulting from the fact that foreigners do not speak Polish and exhibit behavioural patterns that differ to a greater or lesser extent from the norm. The experience and “penitentiary intuition” of the official actually turned out to be the only guide in these situations. The attitude of the foreign inmates themselves is no less important for the proper functioning of a penal institution. The examination shows that most of them are not looking for extra hassles but are trying to serve their sentences with as little trouble as possible. In view of the above, it would seem legitimate to argue that the main reason for there not being greater problems with foreigners in Polish prisons is that there are so few of them.

341-362

Authors: Małgorzata Szwejkowska, Dariusz Załuski

Incest is a perennial moral taboo. The word usually denotes sexual relations between close family members, and less frequently, in-laws and adoptees. Prohibitions on engaging in these types of sexual relations can be found in every society. The family members prohibited by the criminal law from engaging in sexual relations with each other might have changed and narrowed over the centuries, but this type of deed remains proscribed by most criminal law systems. It is usually noted, however, that the small number of convictions recorded for this type of crime every year is a sign that a clear majority of perpetrators of incest and similar acts go unpunished. Where the legal provisions concerning incest fall short is in their practical ineffectiveness when it comes to preventing victimisation. A general psychological profile of this type of offender has yet to be created, as has a broader profile of the paedophile. This might be difficult because the nature of what causes sexual preference disorders (e.g. paedophilia, sadism and fetishism) has yet to be determined. The results presented in this paper are intended to reveal the character traits that distinguish offenders who incestuously exploit minors and who have been diagnosed as paraphiliacs. The average age of the offenders surveyed was 43 years. This finding accords with results of the studies presented in the international literature, viz. that people convicted of incest and other sexual offences against minors living with them in the same household are older than rapists and paedophiles whose victims do not live with them in the same household. The survey group was dominated by people with primary (including 5 who had completed “special schools” at primary level) or vocational education (most common among those convicted). A mere 7 people who could produce a diploma to prove they had finished secondary school were recorded and most of these qualifications were vocational. No one in the group had higher education. Their level of education was found to match their current occupations, i.e. trades or manual labour that did not require any special qualifications, and to bear out the fact that most of them were of average IQ. Everyone in the group had been diagnosed with one or more sexual preference disorders and for this reason they were all completing remedial programs while serving prison terms. This category of convicts was dominated by people diagnosed as repeat heterosexual paedophiles. It is also worth noting that many in the group had been diagnosed with other psychiatric disorders – especially alcohol dependence syndrome – in addition to sexual preference disorders. The victims were overwhelmingly female (59 or 85.5% of the total). Thirty six of these girls had been sexually exploited by their biological fathers. The sex of the victim would therefore appear to be of crucial importance in terms of threats from friends and relatives living in the same environment.

389-421

Authors: Olgierd Jakubowski

Trafficking in cultural property is a transnational crime that threatens world cultural heritage and jeopardizes legitimate trade in art. The smuggling of cultural property assumes a number of forms. Items might be illegally imported or exported, cultural property might be take out of a country on a temporary permit and not returned, and cultural property might not be declared when it is brought into a country to avoid paying duty. Given such diverse forms of smuggling, criminologists find it hard to give an unequivocal definition of trafficking in cultural property and to specify who is a trafficker and who is not. The illegal transfer of cultural property across national borders is often connected to, if not tightly bound with, other types of crime. Criminals who steal precious works of art and organized gangs that loot archaeological sites all factor smuggling into their plans to sell the stolen cultural property. Trafficking often remains undetected until a stolen item is found abroad. Unless the item is found, many years can transpire before anybody realizes that it was illegally moved across national borders. Law enforcement statistics consequently fail to fully convey the scale of trafficking in cultural property. It is also worth noting that cultural property, and especially works of art, is of interest to organized crime and used as collateral in e.g. drug transactions and money laundering. Globalization has strengthened the phenomena that stimulate trafficking in cultural property. Streamlined movement of goods, limited border checks and higher traffic between countries are all contributing factors that heighten the risk of cultural property being illegally transferred. Preventive measures are required to alleviate this risk. International organizations such as UNESCO, UNODC and Interpol have been combating trafficking in cultural property by devising practical measures and drawing up regulations to help contain the problem. Unfortunately, these have met with mixed success. The measures devised to prevent the illegal movement of cultural property between EU member states have proved to be ineffective, prompting changes to both Polish law and EU regulations. This paper outlines the scale and extent of trafficking in cultural property and discusses the legal regulations designed to combat it.