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1

Problematyka pasożytnictwa społecznego: aspekty prawne

100%

Szamota B.

Archiwum Kryminologii

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1985

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issue XII

101-112

2

Badania nad prewencją generalną: problemy metodologiczne

100%

Szamota B.

Archiwum Kryminologii

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1984

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issue XI

93-122

EN

The results of empirical studies on general deterrence carried out so far are far from being unequivocal. Taking general deterrence research as a whole, it can be concluded only that in some situationa some individuals are deterred from some crimes by some punishments. Moreover, it is now obvious to most researchers that the problem is not whether punishment has deterrent effects but rather under what conditions and to what extent they occur. Thus, as the deterrent effects of the punishment threats are tentatively confirmed, further studies in this direction seem to be called for. So far the main achievement of the general deterrence studies has been overcoming some simplified approach to formulating problems (in research) and improvement in research methods rather than verification of hypotheses. Therefore, instead of describing the results of these studies, this paper has been limited to methodological problems. It seems to the author that with the present-day knowledge on the deterrent effeets of punishment threats, the above approach will help to ensure continuation of empirical studies and will contribute to the gradual and cumulative enrichment of theoretical interpretations of the abovementioned problem. Owing to the limited scope of this presentation only some selected problems have been dealt with. While carrying out this selection the author had to bear in mind that no such empirical studies had been carried out this selection the author had to bear in mind that no such empirical studies had been carried out in poland so far and the results of studies made elsewhere had not become popular among Polish readers. This article has been confined to the penal law and the deterrent effects of criminal punishment threats rather than the punishment in general and it was mostly based on works published in the English language. Apart from the Introduction, the article consists of the following parts: I. Notion of general deterrence, II. Deterrence vs. other general preventive effects of punishment, III. Types of general deterrence, IV. Theoretical foundations of general deterrence research, V. Conditions for effective general deterrence, and Summary. I. Notion of general deterrence The author points to the differences in the definition of general deterrence, to the ambiguity and vagueness in the formulations found in the literature on this subject. She stresses the importance of a clear definition of the above notion for the purposes of empirical studies, which will, as a result, help to avoid misunderstanding in interpreting the research evidence. Since punishment, or strictly speaking, the threat of punishment, prevents people from committing an offence in a variety of ways, the deterrent being only one of them, the researcher should clearly define what mechanisms he is going to study. For empirical studies a narrow definition of general deterrence, i.e., restriction to one mechanism only, seems to be more appropriate. So far, most studies have been devoted to the mechanism of deterrence. II. Deterrence vs. other general preventive effects of punishment At this point the author discusses also other mechanisms of the preventive effect of punishment threats, especially its moral and educational influence as well as its role in habit formation. Many mechanisms of general preventive effect of punishment have not yet even been identified. In spite of the fact that it is advisable to restrict the subject of investigation to but one mechanism, it is difficult in practice to differentiate between the various mechanisms of general prevention. When interpreting the data it will probably be necessary to determine the impact of these other processes on the results of investigations. The study of the other general preventive effects of criminal sanctions brings about some specific problems such as those of a diffcrent time perspective, as they are of no direct character and require some longer period of time to bring down the crime rate. Although the present paper is confined to the effects of criminal sanctions, the author emphasizes the need for considering a wider perspective of reasons for compliance with the law. III. Types of general deterrence. When considering general deterrence from the terminological point of view one has to include its various types. The author discusses the following types of general deterrence encountered in literature: quantitative vs. qualitative; absolute vs. marginal; particularized vs. generalized or selective; total or complete vs. restrictive; replacing vs. non-replacing partial vs. Modifying or substituting or displacing. The distinctions suggested are often neither exhaustive nor exclusive. Still the general deterrence typology even in this form is of considerable methodological importance. Different types of evidence are relevant when an attempt is made to determine the different types of general deterrence. If the distinctions are not made then it may be concluded that a sanction had no deterrent effect at all simply because no evidence was collected for what is only one type of general deterrence. IV. Theoretical foundations of general deterrencę research. First the author presents the deterrence doctrine. It is because what lies at the foundation of general deterrence research, i.e., a set of loosely connected and vague statements and assumptions, can at most be called a doctrine. Besides, the present shape of this doctrine does not differ much from that of the classical model of general deterrence formulated by C. Beccaria and J. Bentham. The drawbacks and ambiguities of the deterrence doctrine, as pointed out by the author, have come to bear on the results of studies aimed at the verification of the doctrine's propositions. What is necessary is to reformulate the deterrence doctrine into an empirical theory. Then, directions are discussed in which the deterrence doctrine has been and still is developing. First of all, the deterrence doctrine is being developed through a different conceptualization of the relationship between legal sanction and behaviour. It is now generally agreed that general deterrence cannot be conceptualized as a unitry bivariate relationship between punishment threats and crime. Instead, it is maintained that the relationship is moderated by a number of conditions yet to be identified empirically. The number of variables to be considered have also become larger. What is specially worth noting is the fact that other, extralegal factors have been included in deterrence models. Another important trend in the development of the deterrence doctrine is that of emphasizing its psychological character and including the so-called perceptual variables characterizing the way how sanction characteristics are perceived by potential offenders. The emphasis on perceptions of punishment developed from an awareness that deterrence is a communicative proces. In order to deter, actual threats of legal punishment must be communicated to individuals. It will be most essential for the formulation of the general deterrence theory to determine the relationship between objective properties of legal sanctions. V. Conditions for effective general deterrence. The basic research problem consist in identifying the conditions for effective general deterrence. As for determining these conditions, there are so far only few empirical data available. Besides, one can hardly see what the consistent theoretical assumptions could be which will help to have some relevant factors included in the study, especially in the case of extralegal conditions. One should also be aware of the fact that the numer of possibly relevant factors is, practically speaking, unlimited and that many of these factors will influence behavior only when particural values of a large number of the others are present. But, characteristic of most „theoretical” writings is that the authors usually confine themselves to summing up a list of possible relevant factors, not dealing with possible interaction. The author discusses the concept of a „marginal group”. Summary The article ends with a short description of the methods used in the study on general deterrence. The author points out to limitations of the methods and data that have most frequently been used in addressing the deterrence question. It is necessary to collect better data about perceptual processes.

3

Stosowanie środków specjalnych – nadzoru ochronnego i ośrodka przystosowania społecznego – wobec recydywistów skazanych w warunkach art. 60 k.k.

63%

Rzeplińska I., Szamota B.

Archiwum Kryminologii

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1982

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issue VIII-IX

151-190

EN

The Penal Code of 1969 introduced in Chapter VIII a complex of regulations defining the criminal liability tfor offences committed in the conditions of special recidivism. Two categories of special recidivism were introduced: basic recidivism (Art. 60 § 1 of the Penal Code) and multiple recidivism (Art. 60 § 2 of the Penal Code). To assume the first category, the following criteria are required: 1) commission of an intentional offence similar to the previous one, 2) execution of at least 6 months of imprisonment, 3) commission of a new offence within 5 years after discharge from prison. To impute the offender the commission of an offence coming under the second category of recidivism, the following conditions are necessary: 1) conviction for at least the fourth time, in this twice under the conditions of basic special recidivism, 2) repeated commision of an intentional offence to profit financially or of hooligan character, 3) total imprisonment of at least one year, 4) commission of a new offence within 5 years after the last imprisonment. For each of those two categories of recidivism, the principles of aggravated criminal liability are fixed by the Code, and they refer to less - serious - offences only. Towards persons coming under Art. 60 § 1 and 2, imprisonment within the raised limits is adjudicated. Towards such persons, absolute suppression of suspension of the execution of penalty was formulated. The strictness of these regulations is partly diminished by Art. 61 of the Penal Code, which created the possibility to depart from the aggravation of penalty as expressed in Art. 60, in "particularly justified cases, when even the lowest penalty inflicted on the basis of Art. 60 § 1 and 2 of the Penal Code, would be incommensurably severe". The Code fights special recidivism also by providing special measures against special recidivists coming under Art. 69 § 1 and 2: protective supervision (called "supervision" further on) and social readaptation centre (called "centre" further on). The first of them - supervision - is a non isolating measure, consisting in the control of behavior of the supervised person in the conditions of liberty. It is adjudicated for a period of 3 to 5 years (Art. 63 § 1 of the Penal Code). The second measure - centre - is of isolating character. The duration of stay in the centre is not appointed beforehand in the sentence: it is at least 2 years, at most 5 years long. After 2 years, the recidivist may be discharged by the execution of penalty court if there are good reasons to presume that he will not commit any offence after discharge (Art. 65 of the Penal Code). Special measures are executed after the sentence has been served. The principles of application of the special measures differ as regards both categories of recidivists: those coming under Art. 60 § 1 of the Penal Code (called "common recidivists" further on) and those coming under Art. 60 § 2 (called further "multiple recidivists"). The organs authorized to adjudge these measures are the criminal and execution of penalty courts. Their decision as to adjudgement of them may be taken at various stages of legal and executive proceedings: in the sentence (criminal court), in the latter part of imprisonment (execution of penalty court), and during the supervision (execution of penalty court). The principles of application of the special measures by the court which is to pass judgement in the case are stated in Art. 62 of the Penal Code. According to § 1, the application of supervision is optional towards the offenders coming under Art. 60 § 1. The court is here at liberty to decide as to the possible measures, as no premises to adjudge supervision are specified by the regulation. As to the recidivists coming under Art. 60 § 2, the adjudgement of one of the two special measures is obligatory, that of supervision as a rule. The adjudgement of the centre takes place only if the court recognizes supervision insufficient to prevent recidivism (Art. 62 § 2 of the Penal Code). The second instance when decisions are taken as to the application of the special measures is the close of imprisonment of the recidivists. The rulings of the execution of penalty taken at this stage of the proceedings modify those taken previously - that is, in the sentence - as regards the application of the special measures. In the case of common recidivists, these modifications may consist in adjudgement of supervision if it was not adjudicated in the sentence (Art. 91 of the Code of Execution of Penalties), or - if the recidivist is released on probation - in the specific conditional simulation of the supervision adjudicated in the sentence (Art. 98 § 1 of the Penal Code). If the release on probation is not cancelled by the court, the adjudgement of supervision loses effect (Art. 98 § 2 of the Penal Code). In the case of multiple recidivists, the modifications which may take place in the latter part of imprisonment as regards the adjudication of the special measures always consist in substitution of a strict measure by a milder one: the penitentiary court may replace the adjudgement of the centre with supervision (Art. 103 of the Code of Execution of Penalties) or release multiple recidivists on probation. The third closing stage of proceedings when the decisions on application of special measures are taken is the execution of supervision. In this stage, the position of recidivists coming under Art. 60 § 1 and 2 of the Penal Code is identical: they can both be sent to the centre in consequence of failure of the supervision (Art. 64 of the Penal Code). Thus the adjudgement of the centre in consequence of failure of supervision serves here as a measure to discipline the execution of supervision. The present study was based on the data from criminal records of the Criminal Register and the Central Files of Convicted and Temporarily Arrested Persons. The material from these records enables one to notice the differences, as regards the data they include, between the groups of recidivists distinguished in respect of the special measure adjudicated towards them, and thus, to define initially the criteria for application of these measures. As a conclusion, an attempt was made to define the general range of adjudgement of the special measures towards recidivists regardless of the stage of proceedings in which it took place. The research was of cross-sectional character. The examined population consisted of recidivists (coming under Art. 60) from the entire country and selected to 3 random samples: the first sample included all recidivists whose sentences had become valid within the period from March 1 till April 30, 1979 (1181 persons), the second sample included all recidivists discharged from prison within the period from February 1 till March 31, 1979 (874 persons), and the third one - all recidivists whose supervision had been completed within the period from April 1 till May 31, 1979 (544 persons). There were the total of 2599 cases, from which 72 cases had been excluded because of the lack of complete data in the Criminal Register. The final populations of the separate samples were thus as follows: I - 1146 persons, II - 869 persons, III - 512 persons (the total of 2 527 persons). The collected material was then analysed, that is, the groups of persons were compared, distinguished on the grounds of the type of the special measure adjudicated towards them, for instance the group of multiple recidivists towards whom supervision had been adjudicated was compared with the group sent to the centre. The above comparisons were made for each sample separately, and within the sample - separately as regards the common and multiple recidivists. The method of representing the results reflects , the analysis scheme: each sample has been represented in a separate part of the present paper. The study is summed un by an attempt to estimate the general range of adjudgement of the special measures towards recidivists. The results of the estimation indicate that the application of the special measures towards recidivists is of a very broad range. As many an approximately a half of the common recidivists had been subjected to supervision; failure occurred as regards 40 per cent of the supervised persons, which makes about 1/5 of all common recidivists, and these persons came under the regulation providing the adjudgement of the centre in consequence of the failure of supervision. In 40 per cent of the cases the cause of the unsuccessful termination of supervision was the non-compliance with orders and duties by the supervised person, and in 60 per cent - commission of a new offence. As regards multiple recidivists, there were as few as 14 per cent of them towards whom no special measure whatever had been adjudicated, owing to adjudgements of the execution of penalty courts. Approximately 27 per cent of the multiple recidivists had been sent to the centre immediately from prison, while approximately 59 per cent had been subjected to supervision. In over a half of these cases supervision was unsuccessful, which makes about 1/3 of the multiple recidivists. The cause of the unsuccessful termination of supervision was in 2/3 of the cases commission of a new offence, and in 1/3 of the cases non-compliance with orders and duties.

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3 Archiwum Kryminologii

3 Szamota B.

1 Rzeplińska I.

1 1985

1 1984

1 1982

Problematyka pasożytnictwa społecznego: aspekty prawne

Badania nad prewencją generalną: problemy metodologiczne

Stosowanie środków specjalnych – nadzoru ochronnego i ośrodka przystosowania społecznego – wobec recydywistów skazanych w warunkach art. 60 k.k.