How Do Really Judges Punish? Judicial Selection of Appropriate Imprisonment Terms.

Abstract

Criminal codes provide judges with a freedom to impose a proper punishment on offenders. This article investigates how judges use this freedom of choice in determining the appropriate imprisonment terms for most common crimes. The analysis is based on all 504,281 final sentences given in 2005 in Poland in criminal cases.It has been found that judges punish criminals in a very schematic way. Judges select only few terms of imprisonment from the applicable range and ignore all other possibilities, which casts doubt on whether punishment really fits the crime. In fact, the 5 most commonly used terms of imprisonment constitute between 60 and 90 % of all sentences. There would be small difference then if instead of a continuum of imprisonment terms, the criminal code provided only 5 possible terms of imprisonment for a given crime. Moreover, in choosing the length of a sentence, judges have a particular tendency to use mostly even numbers, in particular multiplies of 6 and 12 months. Judges do not use odd numbers, with an exception of multiplies of 3 months. Therefore, even if the culpability of the offender depends on many factors of continuous characteristics (like his motivation and modus operandi, the nature and size of the harm done by crime, a way of life before the offense, the behaviour after the commission of crime and so on), discontinuity of the penalties’ distribution suggests that some offenders are punished unjust – either too severely or too leniently, due to schematic way of judicial assessment.The further analysis of the 25 most commonly punished crimes reveals that courts do not use the whole available range of punishment as provided for in criminal law. Judges punish offenders by imprisonment terms close to the lower limit of applicable penalty (anchor point), and they rarely exceed 50% of the applicable range. Therefore, more severe punishments provided for in the criminal code remain rather a theoretical threat.