Punitive by negligence? The myths and reality of penal nationalism in the Czech Republic

Abstract

Penal populism has repeatedly been described as influencing penal policies, with harsh penal practices presented as evidence of its influence. However, little attention has yet been paid to its role in the development of penal policies in post-authoritarian countries, which generally have large prison populations. Some minimal research has suggested that Central European countries were driven by penal nationalism following the 1989 revolutions. I examine this claim for the Czech Republic, using Garland (2013)'s framework of the five dimensions of a penal state. My analysis of political manifestoes shows that Czech politicians did not employ “law and order” rhetoric. The country's penal reforms were led by lenient penal elites. Nevertheless, a lack of analysis, coordination and sufficient funding resulted in a failure to properly identify or tackle the causes of the country's high imprisonment rate. Even though it gradually became more difficult to impose prison sentences, insufficient attention was paid to the length of the sentences Czech prisoners were serving. The large Czech prison population thus seems to be the result of state actors’ negligence, but not of penal populism nor of penal nationalism.

Keywords

Punitiveness penal policy post-communist Europe penal state Czech Republic

Harsh penal policies are often presented as resulting from penal populism. This is referred to in the scholarship using various terms: populist, penal or new punitiveness (Bottoms, 1995; Pratt et al., 2011) but all of these mean essentially the same: enacting policies to win votes rather than to promote justice or reduce the crime rate (Roberts et al., 2002: 5). Penal populism requires deliberate action: harsh policies cannot be simply labeled “populist” in a negative sense if they were not formulated with the vision of gaining popularity while the politicians were aware of policies being unfair or ineffective (Roberts et al., 2002: 5). Highly punitive policies might result unintentionally from a lack of attention to the complexities of the criminal justice system or from the enactment of tools aimed to limit punitiveness, which fail to do so. Even if leniently tempered penal elites are given the possibility to shape the criminal justice system, they may not adopt policies appropriate for the situation at hand, either owing to a lack of sufficient empirical analysis, limited resources or mistaken ideologies. In other words, while harsh penal practices might be enacted with the aim of gaining popularity with disregard for their effectiveness—and thus deserve to be called populist—they can also arise through negligence on the part of the legislator, failure to investigate the causes of high prison populations properly, lack of will or a failure to prepare theoretically and practically sound solutions.

Penal policies and practices have been examined in criminological scholarship both comparatively (e.g. Cavadino and Dignan, 2006; Dünkel, 2017; Lappi-Seppälä, 2008, 2011) and in greater detail at the level of individual countries. Where individual country studies are concerned, most attention has been paid to Western countries, especially the USA. There is still little known about the development of penal policies in other parts of the world. An examination of the role that criminal policies played in countries that have experienced transformations from authoritarian to democratic regimes is particularly desirable, since penal policies are one tool that can easily be misused by emerging democratic politicians. To date, there has been only scarce research published in English on the development of penal policies in Central and Eastern Europe (Flander and Meško, 2016; Krajewski, 2016; Lévay, 2012; Šelih and Završnik, 2012; Tripkovic, 2016; Válková and Hulmáková, 2007). This is particularly disappointing given that the countries in this region generally have larger prison populations than the Western countries do (Dünkel, 2017) and previous research has argued that politicians in these countries used penal issues to invent a specific form of penal populism: penal nationalism, defined as penal populism that “appeals to the nation as it defines transgression and equates punitiveness with national sovereignty and protection” (Haney, 2016: 348).

In this paper, to address that gap in the literature and further comprehend how the penal state developed in the Czech Republic following the transformation of the political system, I examine Czech penal policies between 1989 and 2019. I begin by summarizing the context and existing research on the development of penal policies in Central and Eastern Europe, with a specific focus on penal nationalism. To assess the Czech penal state I then analyze the five dimensions of a penal state as defined by Garland (2013) specifically designed for comparative research. Since my findings are not in line with the suggested theory of penal nationalism, I examine what is behind this dissonance when discussing individual dimensions. To test the hypothesis that penal policies resulting in a high prison population rate (number of prisoners per 100,000 inhabitants, henceforth “PPR”) might be the result of a negligent legislator, I discuss the specific problem of consecutively served prison sentences, which is one of important contributors to the high Czech PPR. I close with a discussion of “punitiveness by negligence”.

Penal populism in Central and Eastern Europe

The development of criminal justice policies and penal punitiveness east of Germany has long been neglected by researchers, with one of the few exceptions being Haney (2016), who described penal policies in four Central European countries: the Czech Republic, Hungary, Poland and Slovakia, with Hungary being the prime focus. The article claims that politicians in these countries reimagined post-socialist society using tough “law and order” rhetoric (p. 348) to provide solutions to the dilemmas of democratization and Europeanization. According to Haney, the national values in these countries are imagined in opposition to a criminal “other”, which is construed primarily as sex offenders, the Roma minority and migrants. This depiction is similar to that portrayed in Lévay (2012)'s description of Hungarian policies, which discusses the 2009 introduction of “three strikes” sentencing legislation and mandatory life sentences in Hungary.

It is rather unclear to what extent the presented development in Hungary can be generalized to the other countries in the region; those researchers who have described the latter certainly paint more complex pictures. The Polish criminal justice system, for example, placed strong emphasis on alternative sentences after the revolution and “[t]he increases in severity have not resulted primarily from harsher laws and stricter sentencing practices. Polish judges are not unusually punitive. They attempt to keep substantial proportions of convicted offenders out of prison … Unfortunately, the tools most available to them are probably the wrong tools” (Krajewski, 2016: 215). In the Czech Republic, the penal measures taken since 1989 have been described as predominantly well-founded and frequently based on criminological research, with attention being paid to human rights, in which international NGOs have played a substantial role (Karabec et al., 2008). Similarly, Serbian penal policy has gradually moved toward moderation from both the viewpoints of legislative changes and penal philosophy, yet unofficial pressure from punitive politicians has led to some judges imposing harsher sentences (Tripkovic, 2016). These accounts provide a more composite picture than the suggested “law and order” rhetoric.

In this paper I will contribute to this picture by providing a description of the development of Czech penal policies after 1989. The Czech Republic is an ideal country on which to study the effects of the transformation in this respect, since its PPR is higher than the average in Central and Eastern Europe: it incarcerates 177 inmates per 100,000 inhabitants as of October 2021, ranking 10^th highest among the 51 states in wider Europe and 4^th highest within the EU (World Prison Brief, 2021).

The dimensions of the Czech penal state

To holistically analyze the Czech penal state, I now turn to an examination of its dimensions as suggested by Garland (2013): state and internal autonomy, control of the power to punish, modes of penal power and powers’ resources and capacities. This analysis logically concentrates primarily on politicians (Snacken, 2010) and state actions because in modern democracies only states can deploy penal powers (Garland, 2013). Since states form a complex set of relationships these days, the focus needs to be primarily on “those aspects of the state that enact penal law, shape penal policy, and direct penal practice” (Garland, 2013: 495) in other words the apparatus of the state that determines the direction of penal policy. In this article I focus primarily on institutions and rules; when considering discourse, I concentrate on its aspects that directly lead to changes in institutional setting or which suggest specific policies (political party manifestoes). Discourse analysis not connected with institutional setting—such as of political speeches or media interviews—is not the focus of this article, partly differing from Haney (2016).

State autonomy

Leadership might easily yield to the demands of interest groups, public opinion polls, media or voter ballot initiatives. To identify the extent to which the Czech political elites may have been influenced by such pressures, I first analyze the criminal justice sections of the manifestoes of all the political parties that were elected to the Lower House of the Czech Parliament, which is the center of its legislative activity. To be elected, a party must win at least 5% of the votes. The parties’ political manifestoes represent the issues the political parties consider appealing to potential voters—possibly motivated by populism—and the legislation those parties would push through, since the parties need to deliver on the promises made, once they are elected. They represent the middle way between rhetoric and actions taken. The use of manifestoes have, nevertheless, also several limitations, including their possible unrealistic nature or parties' unwillingness to act accordingly, so their analysis needs to be supplemented especially by consideration of enacted laws. Yet they are also viewed as indispensable (Volkens et al., 2013).

Criminal justice issues were mentioned in 53 political programs between the 1990 and 2017 elections; I have grouped them into the following categories, ordered according to their frequency:¹

Police (featured in 39 out of 53 political programs): Political parties emphasized the need for more policemen (especially on the streets rather than behind desks) and the necessity of professionalizing the police force together with calls for reforms and for improvements to the functioning of the police force and public prosecution service.

Prevention (24 out of 53 manifestos): Prevention being more important than repression was mentioned together with specific preventive measures aimed at tackling the issues of criminality in socially excluded places (ghettos), of youth and drug criminality or to resocialization programs.

White collar and organized crime (22 out of 53 manifestos): These forms of criminality were considered to require the most attention from the system, resulting in suggestions of tools to fight it included increasing the effectiveness of the police, the prosecution and the courts and enacting various legislative measures.

Corruption (20 out of 53 manifestos): Corruption was, together with white-collar crime, an issue on which the attention of the police and prosecution was to focus substantially and for which sentences should increase.

Drugs (19 out of 53 manifestos): When discussing drug issues, both prevention and repression were emphasized. The distinction between drug production and distribution was made as well as an emphasis on drug addiction being a social problem. Repression was to be aimed primarily at those who profited from the system and at hard drugs, while decriminalization of soft drugs was at times proposed.

Prison conditions (18 out of 53 manifestos): Politicians were interested in four issues regarding prison conditions: Their humanization (also via modernization), prisoners’ work (especially to increase their employment rate), the need for effective programs in prisons (including helping prisoners to eliminate their debts) and favorable conditions upon prisoners’ release (e.g. tax breaks for their employers or more effective post-penitentiary care). Only two manifestos made any suggestion that prison conditions should be harsher (and not a “state-paid vacation”).

Alternative punishments (13 out of 53 manifestos): New alternatives to imprisonment and an increased use of existing alternatives were called for as short-term imprisonment was considered criminogenic and expensive; specifically, parties were interested in wider imposition of fines, electronic monitoring, community service and home detention and wider use of pretrial diversions.

Increased repression for primarily very serious offences (13 out of 53 manifestos): The need of more severe punishments for very serious offences was stressed, specifically for murder, manslaughter, violent criminality more generally, crimes against children, crimes committed by young offenders, drug offences and rape. There was a proposal for the age of criminal responsibility to be lowered from 15 to 14. In the early 1990s, three smaller parties suggested reintroducing the death penalty, imposing consecutive sentences for multiple crimes, life imprisonment without the possibility of conditional release, and additional measures aimed at Roma minority. None of these measures were enacted.

Victims (9 out of 53 manifestos): The need for further rights for the victims of crimes, and their protection, was suggested.

“Three strikes” (5 out of 53 manifestos): Efforts to implement a three-strikes approach were brought up in two contexts. First, in the 1996 and later in 2006, one minor political party suggested adopting an approach similar to that taken in the USA. No such law was enacted; Haney's statement that such legislation was enacted ‘across the [Central European] region’ (2016: 354) thus does not hold true for the Czech Republic. Second, a principle called ‘three-strikes’ was proposed by two political parties in 2013 and 2017, yet it was something entirely different: it was designated to tackle repetitive small thefts by specifying that if an individual were to commit an administrative offence of theft thrice within a specific period, it would become a criminal offence (with a zero or very low sentencing range minimum).

The most frequently recurring topics in the political parties’ manifestos reflect the societal context. Following a change of regime from an authoritarian to a democratic one, police and its reform were the most important topic together with a focus on the types of criminality common to transitional countries: white-collar and organized crime and corruption. Regarding attitude toward offenders, prevention was emphasized and where sanctions were mentioned, there was clear demand for bifurcation via the wider use of alternative sanctions (primarily after 2006), alongside more severe punishment for very serious offences (primarily prior to 2006). The demand for prevention and alternative sanctions was, however, greater than for the harsh punishments. Typical penal populist rhetoric, such as “prison works”, “incapacitation”, “segregation” or “three strikes and you’re out” are either marginal or absent in these manifestos and mentions of them appear especially early after the 1989 turnover. The political programs of Czech political parties that achieved success at elections thus do not seem to be strongly influenced by penal populism.

A reason for this might be that the fear of crime steadily declined following a regime turnover: in January 1991 74.1% of respondents considered crime to be a very urgent issue, while in March 2019 only 40.7% did.² Similarly the attitude toward capital punishment changed importantly: in September 1992, 76% supported it and 13% were against it (11% did not know). Gradually, the support waned and in May 2019 50% supported it, while 41% opposed it (CVVM, 2019). After 1989 Czech society paid less and lass attention to crime and severe punishment, not incentivizing politicians to take on penal populist issues.

The penal policies enacted, however, did not fit the second test of state autonomy that Garland describes: in accordance with the state officials’ interests and ideologies. I suggest that this is because during the 1990s and 2000s, Czech criminal justice policies were not primarily coordinated by the government or by politicians, but were the result of uncoordinated individual laws. This assertion is in line with an existing analysis of the changes that took place in Czech penal law between 1993 and 2008, which suggests that from 1997 onward the changes in penal legislation were not primarily the result of governmental long-term strategies, but of the initiative of one or more individual members of parliament without any broader concept of penal policy (Wintr and Raček, 2010). The government prepared several important laws—including the new 2009 Penal Code—but these laws were drawn up by individual committees led by penal elites and did not arise out of any coordinated plan for the criminal justice system.

These observations do not match well with Haney's contention that Czech politicians used ‘tough, law and order rhetoric to reimagine the postsocialist community’ (2016: 348). What is the source of this dissonance? A part of it might be explained by this article's emphasis on institutional setting and Haney's emphasis on discourses. Yet while this article's analysis suggests politicians presented themselves and enacted lenient policies, Haney (2016) does not persuasively show politicians used ‘law and order’ rhetoric. Proper discourse analysis would be necessary to identify the main strands of politicians’ discourses; the discussion below is limited to shortly disproving Haney (2016)'s main arguments.

Most importantly, Haney considers Václav Klaus, the Czech prime minister (1992−1998) and president (2003−2013) to have been the main voice of Czech nationalist punitiveness. Her article highlights statements by Klaus regarding the ‘final solution of crime’ echoing Hitler (Haney 2016: 358), pedophiles ‘stealing “our” children’ (357) and his anti-Roma sentiments (358). This argumentation is complicated on several levels. First, the authenticity of these statements is unclear, since they are not referenced and do not appear to be traceable. Methodologically, the argument is based on examples from one single persona, omitting any analysis of the broad political spectrum, or even of the primary holders of legislative powers (political parties). In singling out Klaus’ views, Haney noticeably overlooks those of another defining figure of the 1990s and 2000s, Václav Havel (president in 1990–2003), who cannot be labeled a penal nationalist in any respect. Finally, other of Klaus's statements and actions draw a rather different picture. He criticized overly wide criminalization and promoted alternative sanctions, while advocating strict punishments for violent offenders (Klaus, 2009) and enacted one of the largest amnesties ever: 111,263 sentences were pardoned, among those 19,820 non-suspended prison sentences³, reducing the prison population by one third (Štůsek, 2013). In proportional terms, this would be equivalent in pardoning 525,000 prison sentences in the USA or 28,500 in England and Wales. To label Václav Klaus as a “main voice of nationalist punitiveness” appears at the very least to overlook the complexity of his views, at worst to mislabel him.

Haney's second main assertion regarding penal nationalism in the Czech Republic, that the politicians ‘criminalized the other’, is also problematic, at least when criminalization is considered a deployment of penal power. Haney (2016) argues that the country directed negative attention toward sexual offenders, Roma minority, migrants and German criminals. While public opinion in relation to these groups is certainly troubling, it is not clear whether they have ever been the focus of “criminalizing the other” or indeed whether any political approach was taken against them at all. I will deal with these groups individually,⁴ beginning with sex offenders since Haney claims in her article that ‘Czech[s] are especially preoccupied with sex offenders’ (p. 355). Yet when the public was asked whether they were in favor of or against the introduction of a register of sexual offenders, more than half of the respondents were either against it or in favor of it as long as it was not made public (Blatníková, Faridová, and Zeman, 2014: 104). To date, the country has no register of sexual offenders. Regarding sentencing, rapists—even those committing aggravated forms of rape—are imposed suspended prison sentences at least in one third of cases.⁵ This has led to a repeated public criticism in late 2010s and even to a large manifestation in 2021: given the option of increasing sentencing ranges for rape (inspired by Slovakia) several months prior to 2021 elections, politicians across the spectrum decided against it, suggesting the problem to be more complex, mistrusting a simple increase in sentencing ranges to solve the problem and having a concern for introduction of unnecessary harshness.⁶ Refusing to adopt harsh policies even in highly emotive debates shortly before elections when the problem appears to be real suggests large state autonomy in determining penal policy.

The Czech Roma minority is highly discriminated against (Feischmidt, Szombati, and Szuhay, 2014; Úřad vlády, 2013). To illustrate how politicians took stock of this deep dislike, Haney (2016) quotes a former MP, Miroslav Sládek, who drew a connection between crime and the Roma minority. However, Miroslav Sládek attracted limited attention as he was last a member of Parliament in 1998; the minor party he stood for was not successful in the 1998 election and has since received less than 1% of the vote in subsequent parliamentary elections to date. Haney further mentions that Roma ‘criminality is presented as fundamental to who they are, biologically and culturally or ‘‘mentally’’ as the leader of the Czech Party of Civil Rights recently put it (Mares, 2012)’ (358). Yet the material to which this refers (Mareš, 2012) does not provide any basis for this quotation: it contains no mention of similar party nor any assertions about the Roma minority's biological, cultural or mental predisposition to crime. While a proper discourse analysis might show some politicians connect the Roma minority and crime (possibly criminalizing the Roma minority on a rhetorical level), there was no criminalization of the Roma minority via penal power. This conclusion is in line with the 103 pages long 2021−2030 Strategy of Integration of Roma minority (Úřad vlády, 2021), which does not suggest that any measures need to be taken regarding criminalization of the Roma minority.

Concerning migrants, the Czech reaction to the flow of primarily Syrian refugees to Europe in 2015 was one of the most unwelcoming in Europe and this has since become an important topic in elections. However, the country's approach to migrants is more complex (Stojarová, 2019), for example, negative attitudes have been targeted principally against Islamic migrants, but not against Ukrainians, Russians, or Vietnamese (Klaus et al., 2018: 465). Since criminalization of migrants was primarily rhetorical, not followed by deployment of penal power (except for the use of detention centers) and because immigration is not a traditional part of penal policy, attitudes toward immigration should not be a key argument to support a policy of penal nationalism.

Politicians do not seem to have taken a deliberate strategy of “criminalizing the other” in developing penal nationalism in the Czech Republic using penal power. While many Czechs discriminate or hold hostile attitudes toward refugees and the Roma minority—including some politicians—there is no or very little evidence to suggest that these groups were intentionally and systematically targeted and criminalized via penal law measures, albeit occasional hostile, xenophobic, or racist public comments.

Internal autonomy

The second dimension of the penal state concerns the role of its elites: are they consulted prior to the enactment of laws and do they draft them, or are the laws enacted by the legislature without important input from the elites? Penal elites play a particularly important role since they tend to oppose harsh retributive punishment; similar roles might be also fulfilled by human rights treaties and the institutions that implement them (Garland, 2013).

The most important Czech criminal laws since 1989 have all been written by professors of criminal law, criminologists and criminal judges; these include the introduction of the probation service into the criminal justice system, initiated in 2000, as well as the new law on youth offenders in 2003. Both of these reforms have strong restorative aims and ethos. Similarly, the new 2009 Penal Code was written primarily by a criminal law professor who was also a Supreme Court judge, later its President. In 2020, the new code of criminal procedure is being written by several academics and highly regarded practitioners. The Supreme Court and Prosecutor General's Office are, as of 2020, also obligatory advisory bodies involved in shaping the preparation of legislation. The Czech Republic is a member of all the major international criminal justice treaties and conditions in its prisons are regularly inspected by national and international organizations.

The Czech penal state seems to have rather substantial internal autonomy. One might almost ask whether that autonomy is not, perhaps, too distant from the influence of its politicians or civil service, who in some cases do not even define the main guiding principles according to which the codes are to be drafted or, when they do, change their position in response to the rather high turnover of Ministers of Justice (Karabec et al., 2008: 117). Even on the most important principles, discussion is thus left primarily to ad-hoc committees of the penal elites consisting primarily of judges, academics, attorneys and prosecutors, and there is no coherent penal policy (Scheinost, 2020: 83). Yet, a coherent and effective criminal justice policy requires a long-term perspective and structured cooperation that cannot be achieved by ad-hoc committees or penal elites writing individual laws.

Control of the power to punish

Who controls the state's power to punish? Is it the judges, prosecutors, prison administrators or probation officers? Might they be indirectly influenced, for example, by being elected or via politicians instructing them? And are there differences in the legal provisions across the country?

In the Czech Republic, the power to punish is not substantially divided either vertically or horizontally. From the vertical perspective, the same rules apply to everyone in the Czech Republic. Horizontally, Czech judges decide on everything sentence-wise: they impose sentences and decide on breaches of sanctions and on parole. While doing so, they wield rather broad discretion to impose sentence within sentencing range, since there are no sentencing guidelines, no sentencing commission and only limited guidance offered by general provisions of the Penal Code. Judges might impose sentences below the statutory minima if the sentence would otherwise be strongly disproportionate and the case can be considered extraordinary.

Even though judges control the power to decide on sentences virtually alone, they are not provided with any guidance beyond some very general legislative principles (Drápal, 2020a). The exercise of their discretion is not controlled either by the public or by the experts: neither judges nor prosecutors are elected and their decision-making is not analyzed (Drápal, 2018). Such broad discretion could be a possible way-in for punitive politicians of the kind to which for example, Serbian judges sometimes give way (Tripkovic, 2016). Such influences do not appear to be a problem at present in the Czech Republic, where in 2016, 90% of non-suspended prison sentences were handed out at or below the mid-point of the sentencing range (Drápal, 2020b); Czech judges serve rather to mitigate high sentencing ranges, as seems to be the case in Poland (Krajewski, 2016).

Prosecutors have part control over the judiciary since they are the ones who recommend sentences. Unlike in some countries, Czech prosecutors do not tend to favor harsh sentencing practices. On the contrary, the Prosecutor General has been advocating for a reduction in the prison population and has produced special reports into the causes of its current level (2019) as well as emphasizing the benefits of alternative sanctions and diversions through organizing seminars and effective lobbying for legislative changes. Prison authorities have virtually no power except for preparing reports for parole hearings held by courts, while probation officers’ only power lies in their capability of suggesting that an offender is in breach.

On a more general level, as a result of the country's involvement in various international organizations, Czech penal policies are influenced—or bound—by international and European norms. Haney (2016) argues that Czech politicians experienced and labeled the integration processes to these institutions (especially the EU) as external policy dictation and that they reacted with renewed calls for nationalism, including in the penal sphere. The example she uses to illustrate this is the Czech insistence on keeping surgical castration, against the criticism and recommendation of the European Committee for the Prevention of Torture (CPT). It is presented as an example of shaming rituals as opposed to evidence-based policy making (Haney 2016: 354). Haney suggests that the Czechs responded to the CPT's criticism by claiming that ‘it was their ‘‘right,’’ as a ‘‘sovereign nation’’ to decide how to treat ‘men who can't control their sexual instincts and are sexually aggressive’’ (CPT, 2009: 7)’. Yet although being directly quoted in the article this argumentation of "rights" and "sovereignty" is not present in the Czech government's response to the CPT.⁷

On the contrary, the Czech Ministry of Health stipulated in its 2008 response that it believed that the decision as to whether to use surgical castration in the treatment of sexual offenders ‘is a purely professional issue’.⁸ Experts’ opinions were the reason why castrations were preserved (Lišková and Bělehradová, 2019). Surgical castration was strongly defended by the Czech medical community: the Sexologist society of the Czech Medical Association evaluated the practice and described it as ‘fulfilling all professional and ethical conditions’ (Zvěřina, Weiss, and Hollý, 2016); the Czech scientific community was persuaded that in certain cases this is the best treatment (Vágnerová, 2011). In a response to a further visit from the CPT, the Czech government mentioned in 2009 that it was ‘seeking to strengthen the existing legal guarantees ensuring informed consent and to create more detailed regulation of the procedure for surgical castration.’⁹ The government also commissioned a report on surgical castration, including the advantages and disadvantages of various methods of treating sex offenders and stated that it was ‘prepared to revisit surgical castration in the treatment of sex offenders in light of the conclusions reached following debate by its advisory bodies’.¹⁰ Additional limiting conditions and measures striving to confine the use of surgical castrations to the most extreme cases were later introduced at both the legislative and the executive level. Finally, in its response to 2018 visit, Czech government mentioned it ‘seeks ways to replace surgical castrations … at the national level.’¹¹

While surgical castration is certainly a very controversial topic and the cited responses are only the official positions of the government, labeling its response as “tough rhetoric” (p. 347) is crucially misleading: using Garland's penal state dimensions, the preservation of surgical castration seems to be an expression of internal autonomy and of respect to the country's penal elites, not of punitive politicians.

Modes of penal power and its resources and capacities

The fourth and fifth dimensions of the penal state are the qualitative and quantitative aspects of its power. Garland places modes of power (the qualitative aspect) on a negative to positive continuum according to their nature. The negative ones are represented by segregation, confinement, close control and incapacitation; the positive ones by penal welfare, restorative justice, reentry and resettlement or rehabilitation. The resources and capacities of the penal power system are situated on the high to low scale based on their capacity, with capacity being defined by, for example, budget, professional expertise, trained personnel, system coordination, rational organization and detailed statistics.

It is difficult to discuss these dimensions because it is unclear to what extent the current situation is caused by low attention levels and budgetary constraints and how much it is the result of deliberate action. There is ample evidence that the criminal justice system is not working properly: penitentiary and post-penitentiary care is not properly financed or well coordinated; there is shortage of both prison and probation staff; diversion programs are often not available outside the largest cities; the chief prison psychologist declared in 2015 that prison interventions were not working properly (Jiřička, 2015: 55).

Yet other actions have been situated on the positive continuum: the prison service launched its first open prison in 2017 and a pilot project for the first half-way house was realized in 2016. Another pilot project set up parole boards that investigated requests for parole in greater detail and whose conclusions served as proposals for the courts as to how to decide on parole and these were available in half of Czech prisons in 2019 (discontinued in 2021 due to a project end). The prison service is continuously developing new interventions following examples of successful interventions realized abroad and carries out evaluations of their effectiveness (Jiřička, 2012; Jiřička and Kejřová, 2015). Detailed individual-level statistics are gathered by every criminal justice agency, although these are not frequently thoroughly analyzed. Complex long-term conceptions of prison and probation services are written, albeit they vary in their quality and understanding of the issues and often are only partly implemented.

The resources and capacities of Czech penal power appear to be particularly limited by budgetary constraints. Low salaries in both the prison and probation services lead to recruitment problems, particularly in large cities. While this situation is not objectively positive, the negative modes of penal power are seldom invoked. On the contrary, the prison and probation service, the Supreme Court, the Prosecutor General and the Ministry of Justice all emphasize the importance of rehabilitation, publicly aim to lower the rate of recidivism and improve post-penitentiary care, and are willing to implement certain aspects of restorative justice. There does seem to be a will to implement positive modes—at least partially—although the necessary resources, coordinated strategy and resulting action have so far often been lacking.

Consecutive prison sentences and high PPR

Why is it, then, that the Czech prison population rate is so high? Isn't the fact that the Czech Republic has one of the largest prison populations relative to its general population a sign of penal populism in itself? The PPR is sometimes considered an elementary proxy for penal populism, since it captures the state's willingness to use its most intrusive measures on offenders. While theoretically it seems reasonable to read it in this way, at least two issues make this problematic. First, the PPR only works as a proxy for penal populism if it is the result of a conscious strategy, such as a ‘prison works’ or ‘general deterrence’ strategy. If there is no clearly identifiable intention, a high prison population may not be the result of intentional punitiveness (or penal populism) but rather an unintended consequence. Labeling such a situation as ‘penal populism’ overemphasizes the results and understates the intention—or negligence—of the state actors. While a high PPR always signals harsh outcomes, it does not necessarily indicate harsh intentions. Without evidence of populist tendencies, it would be better to refrain from using the term ‘populist’.

Second, PPR is the product of two factors, namely of the number of offenders entering prisons and the average time each inmate spends in prison. It has been repeatedly noted that countries strongly differ in both these measures (Aebi and Kuhn, 2000; Dünkel, 2017). The consequences of these approaches for an assessment of punitiveness, not to mention penal populism, are unclear: is it the same to send 600 offenders per 100,000 inhabitants to prison for 1.2 months on average as it is to send 60 offenders per 100,000 inhabitants to prison for an average of 12 months? The PPR is the same in both cases, yet the penal tendencies are entirely different (Frost, 2008).

Dünkel (2017: 632) points out that ‘one could view the East European sentencing policy in a different light, when realizing that imprisonment is used less often than in many West European countries’. He further shows that Germany sends to prison more than twice as many offenders as the Czech Republic does and Sweden sends more than four times as many as the Czech Republic. Czech offenders are, however, incarcerated on average for a very long time in comparison with offenders in Germany or Sweden.

This is not surprising: since 1989, the Czech Republic has made it more difficult to impose non-suspended prison sentences by raising the custodial threshold. While the imposition of prison sentences was not limited during communism, from 1990 onwards, prison sentences could be imposed only if no other sanction would secure the offender to lead a law-abiding life. This rule applied if the offender was sentenced for offences with statutory maxima of up to one year. In 2001, that threshold was increased to offences with statutory maxima of three years and in 2011 to those with up to five years of imprisonment, thus encompassing a large majority of tried offences. Even in cases where a prison sentence was imposed, this was then suspended in most cases, since the criminal code stipulated that prison sentences not exceeding two years could be suspended if the execution of the prison sentence was not necessary to achieve sentencing aims. This threshold was increased in 2010 to three years, which means that primarily only repeat offenders or those who have committed very serious offences are directly incarcerated. Finally, the rules for conditional release were further relaxed in 2010 and 2012. These changes have all been in favor of alternative sanctions, suspended prison sentences or release rather than incarceration and certainly do not signal a typical penal punitive approach. On the contrary, they suggest a moderate penal approach, which was led by the penal elites’ distrust of imprisonment and their concerns for its negative effects.

To identify the sources of the high Czech PPR, we thus need to look at why the average prison term is so high. One important factor behind this is that Czech inmates usually serve several prison sentences consecutively (Drápal, 2020b; Prosecutor General; Office, 2019): 53.5% of all inmates released in 2018 served two or more prison sentences in a row and 24.6% served three or four prison sentences consecutively (Drápal, 2020b). Yet neither the legislation nor the theory anticipate the imposition of consecutive sentences. Its origin actually lies—surprisingly—in the intention of imposing fewer non-suspended prison sentences and to speed up the criminal proceedings as much as possible. Yet, until recently, there were no changes of sentencing provisions to counter negative consequences of such reforms.

The easiest way to impose a sanction quickly, other than by imposing a non-suspended prison sentence, is to impose suspended prison sentences without supervision, whose only condition is not to re-offend during an operational period, which are the most common sanctions in the post-communist countries (Aebi and Tiago, 2018: 196; Krajewski, 2007, 2016); to impose any other type of sanction the judge would usually need a report from the probation officer or other information about the offender, making it time-consuming. Suspended prison sentences without supervision can be imposed very easily and the defendants are usually content that they have not been handed a non-suspended prison sentence, so they do not appeal. The cases are thus quickly concluded, which is popular since the speed of proceedings is the only measure Czech judges are evaluated on. The criminal justice system is so fast that according to the president of Prague Municipal Court, the same offender could be sentenced three times within a week or two (Vávra, 2018).

However, this extensive use of suspended prison sentences and fast criminal proceedings results in frequent re-offending during the operational period. The typical case is that of a low-level thief who is first sentenced to community work, then to a suspended prison sentence without supervision, then to a suspended prison sentence with supervision and finally to a non-suspended prison sentence (this situation is colloquially called “full house”). When the non-suspended prison sentence is imposed, the offender is found in breach of the previous three unserved sentences and he/she is therefore ordered to serve them consecutively after the non-suspended one, resulting in a very long sentence even for low-level offences (Drápal, 2020b).

Such accumulation is not intentional. Neither the theorists nor the legislators thought about what might happen to this category of offenders or about providing specific sentencing provisions. These offenders are situated in a grey area between multiple and repeat offenders (see Drápal, 2020b, 2021, for detailed discussion), the existence of which the legal provisions have never considered (they differ from Gesamtstrafe in Czech or German law in such a way that the tried offences were committed after the announcement of the final judgment for previous offences). The rules governing sentencing multiple crimes and repeat offenders were set prior to the introduction of suspended prison sentences in 1919 and the issue of imposing a new sanction to an offender who hasn't yet served a previously imposed sanction was not discussed either in the literature or in the jurisprudence for the next 100 years (Drápal, 2020b). By remaining silent, Czech legislators failed to provide judges with the necessary tools to reduce the often disproportionate sentences that result from several sentences being served consecutively (Drápal, 2020b).

When attention was drawn to this issue by academics, the Prosecution Service working with academics and the Constitutional Court in 2019−2020 using empirical data and sophisticated theory, the Czech Parliament promptly reacted. In late 2020, the Czech criminal code was amended so that at sentencing judges could consider previously imposed not yet served sentences as a mitigating factor. This well illustrates the state's negligence: politicians and executive power do not usually identify problems on their own, but when presented with an analysis and appropriate solutions, they are willing to support a change, albeit such decision might be portrayed as being too lenient on offenders.

While the accumulation of sentences contributes to the high average prison term in the Czech Republic, it is definitely not the only cause. Another factor that contributes to the high average is, for example, the fact that high sentencing minimums are set for drug and repeated property offences (Prosecutor General; Office, 2019). These issues are interconnected: if the legislator does not easily enable the judge to go below the sentencing minimum when sentences start to accumulate (as e.g. in Finland) and the sentencing minimums are high, then the accumulated sentence, even if each individual sentence is set at the statutory minimum, will be disproportionately harsh.

Is it possible to consider the practice of serving several prison sentences consecutively a sign of a penal populism? While this practice undoubtedly leads to harsh and disproportionate sentences being served (Drápal, 2020b), it was not enacted intentionally; rather it is a result of a negligent legislature, academia and jurisprudence.

Discussion: Punitive by negligence?

The development of criminal justice policies in the Czech Republic after 1989 seems to be characterized by a lack of coordination. Penal elites, primarily academics, drafted a new generation of laws that emphasized the principles of rehabilitation, restorative justice and the role of community sanctions and labeled criminal law as the ultima ratio, which suggests a defensive (not offensive) model of criminal policy (Kerezsi, 2013). The “main” pieces of work—from the viewpoint of criminal lawyers—were achieved, one by one, taking stock of at least several windows of opportunity (Tonry, 2013). However, problems in sentencing, in the execution of sanctions and in post-penitentiary care were neither properly analyzed nor resolved. Without such coordination it was almost impossible to create a well-functioning penal state. To do so involves analyzing the problems in detail, learning from examples of good practices from abroad and inventing new ones, formulating the necessary legislative and practical changes and examining their effectiveness. Without such supervision over the criminal justice system, enabled by sufficient resources, it is all very well to have non-punitive (or not caring) politicians and criminal codes drafted by the penal elites: the prisons may still be overcrowded simply because proper measures have not been identified or taken.

The Czech Republic seems to be—at least in some respects—an example of such ‘penal punitiveness by negligence’. The analysis of political manifestoes suggests politicians did not—at least on a legislative level—embrace punitive penal attitudes, but in their majority supported alternative sanctions and limited use of imprisonment, suggesting they were not content with the current situation. Penal legislation was drafted by the penal elites and the obstacles to the imposition of non-suspended prison sentences gradually increased and resulted in relatively few offenders being sent to prison; parole conditions were gradually eased. Yet since suspended prison sentences are the most commonly imposed sanctions and there were no provisions governing sentencing for offenders who have existing unserved sentences, and some sentencing minimums are high (among other issues), Czech prisoners are incarcerated for long periods of time. Due to a lack of thorough empirical analysis—a negligence of both politicians and academia—the discussion has focused on ways to limit the imposition of non-suspended prison sentences, but not on ways limiting the length of prison sentences.

Painting the Czech Republic as a liberal state that simply got it wrong would be an oversimplification. Some tendencies and actions were punitive, such as a slight increase of sentencing ranges for serious offences by a 2009 Criminal Code. Harsher system might have been convenient for some politicians. Yet at least for an important part Czech punitive practices are a result of negligence and not of a penal populism.

The negligence is manifested the most in three out of five of Garland's dimensions. Politicians were negligent especially within the state autonomy and power resources and capacities: they did not enact proper rules and did not provide sufficient resources, even though they emphasized the need for it and tried to do so. Academia was further negligent within the internal autonomy dimension: due to severely underfunded social sciences, distrust of some criminal lawyers towards criminological findings, limited access to data and very limited number of quantitative sentencing scholars the problems were not—and possibly are not yet—properly identified, even though penal elites often tried their best.

Similarly, in Poland, Krajewski (2016) identifies that one of the causes of the high PPR is a lenient legislature that provides judges with the wrong tools. So while topics such as surgical castration or statements of right-wing extremists might seem attractive to prove that a high prison population is the result of penal populism, careful analysis shows that such assertions are probably mistaken for at least some post-communist countries. A working hypothesis might be that at least some post-communist countries have simply not experienced (yet?) the “western trends” of penal populism and managerialism (Bottoms, 1995), but that they have lacked the resources to create coordinated and well-functioning criminal justice systems.

Regarding penal populism Roberts and Hough (2005: 16) distinguish between ‘disregard for evidence about fairness and effectiveness inherent in penal populism and the sincere and thoughtful belief in effectiveness and justice that underlies some politicians’ advocacy of some harsh policies’. Similarly, when looking at states with high imprisonment rates, we should distinguish between states in which politicians enacted harsh policies and those in which politicians made attempts to limit the imprisonment rates, but these were misguided and/or ineffective leading to ‘punitiveness by negligence’.

Improving these situations is no simple task. While it might have been relatively easy to legislate in the Czech Republic that non-suspended prison sentences should only be imposed as the sentence of last resort, a complete reorganization of sentencing ranges—whose high minimums are one of the reason for long sentences—is a much more complicated task, as is an introduction of a functioning post-penitentiary care. It is also easier to draft a new penal code with a handful of other professionals than to create a dedicated team at the Ministry of Justice that analyses the problems, prepares strategies, coordinates criminal justice agencies, persuades the Treasury to fund seemingly non-vital activities and endures endless reorganizations at the Ministry and repeated calls for civil service cuts. Yet exactly these activities are crucial if we are to successfully identify the problems and their possible solutions in the criminal justice setting.

Green (2009), Loader (2010) and Snacken (2015) discuss two types of penal moderation strategies: by stealth (without consulting the public) and moderation-as-politics. Both these approaches require a structured criminal justice policy that might be the beginning of a dialogue; I argue that no such sufficient dialogue took place in the Czech Republic after 1989. The high prison populations are not surprising given that there has been insufficient analysis of the causes of the high PPR and that the starting point was a punitive communist legacy (Krajewski, 2014). Somehow lenient penal elites have tried several shots (partly) in the dark; their attempts were, however, unsuccessful in substantially reducing the PPR.

Footnotes

Acknowledgments

I am grateful to Milena Tripkovic, Alison Liebling, Jan Rozum, Jan Wintr, Tomáš Gřivna, Ondřej Preuss, Jakub Stádník, Andrea Procházková and to the anonymous reviewers for their comments and suggestions, to the Czech Parliamentary Library and to the Library of the Institute of Contemporary History of Czech Academy of Sciences for provision of several political manifestoes and to Annie Bartoň for checking my grammar and syntax. Any mistakes are my own.

Funding

This work was supported by the grant from specific university research SVV–2020–260 495.

ORCID iD

Jakub Drápal

Notes

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