Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

Sex, Age, Education, Marital Status, Number of Children, and Employment – the Impact of Extralegal Factors on Sentencing Disparities

“…In 2015 a major criminal law reform was introduced in order to solve the principal issues faced by the Polish judiciary (Barczak-Oplustil et al 2015): the much higher number of prisoners than the Polish prison system could handle; the high level of discrepancies in the penalties imposed for the same acts adjudicated in different courts; and the statistical structure of penalties imposed in given courts, which in practice meant the willingness to decrease the number of imposed sentences with the punishment of deprivation of liberty and increase nonisolational penalties (like fines) ("Justification of the Bill, the Polish Sejm, No. 2393" 2014.…”

“…Discretion is a natural feature of law and one which has been considered by philosophers of law since the 1930s (cf. Kelsen 2009;Caytas 2012;Dworkin 1963;Vila 2013;Steiner 1976;Mallett 2014;Himma 1999;Ranchordás and de Waard 2015;Raz 1998). The law is written in legal language, which is merely a modification of natural language.…”

A failed attempt to radically reduce inter-court sentencing disparities by legislation: Empirical evidence from Poland

“…The law is written in legal language; nevertheless, it is based on natural language, which is ‘open-textured’ (Hart et al, 1994; see also the polemic article by Schauer, 2011). Philosophers of law have contemplated the issue of judicial discretion for decades (Caytas, 2012; Kelsen, 2009) but the most significant discussion is the debate between Herbert L.A. Hart and Ronald Dworkin, which has been continued to this day by their followers (Dworkin, 1963; Hart et al, 1994; Himma, 1999; Mallett, 2014; Ranchordás and De Waard, 2015; Raz, 1998; Steiner, 1976; Vila, 2013). The central issue in the discussion is not the existence of judicial discretion, but its scope.…”