Constitutional Law, Criminal Law, Evidence, Federal Constitutional Court, Human Dignity, Mental State, Murder, Police and Prosecutors, Policy
What's the Maximum Punishment under German Criminal Law?
May 29, 2021 Andrew Hammel
I'm back after a long hiatus, thanks for your patience. I've just had tons of work lately on many different projects, and I needed to figure out how to fit in time for the blog.
This post will be about German prison sentences, specifically the longest ones for the most serious crimes. Before that, though, I just want to reassure readers that there is still some action in the Soering case. First of all, I have it from the podcasters' own mouths that there will be additional episodes of Small Town, Big Crime. The podcasters are simply working hard on this and other projects, but they assure me that there will be at least one more episode coming.
Second, matters are proceeding in the background. Soering's new book was recently announced for later this year. It's called "Rückkehr ins Leben (Return to Life): My First Year in Freedom after 33 Years in Jail". From the title and jacket blurb it seems like the book will have little to say about Söring's guilt, but I'll skim it just to make sure. I can't imagine there will be anything more than a brief mention of me, if even that. There has also been progress on the Soering Truth Squad front. I can't get into any details, but there will at some point be media productions in German which will examine Soering's innocence claims from a skeptical perspective. That's all I can say now.
What's the Maximum Punishment under German Law?
But let's turn to German law, the actual focus of this blog. A few months ago, Stephan Ernst became the first right-wing extremist to be convicted of a political assassination in German post-war history (there have been several by left-wing extremists). In 2019, Ernst assassinated Walter Lübcke, a top official in Kassel, Germany who had become a target of right-wing hostility for his attacks on critics of Angela Merkel's immigration policy. He was sentenced (g) to "life imprisonment", the most severe punishment under German criminal law, with added findings which we'll discuss in a minute.
But what does "life imprisonment" mean in Germany? How long will Ernst actually stay in prison? The answer is complicated. Let's take it step-by-step.
I. Murder conviction
Under German law, you can only be sentenced to life for murder. German criminal law is defined by the German Criminal Code (Strafgesetzbuch, or StGB), which (after years of preparation) was enacted directly after the unification of the German Reich in 1871. The definition of murder still bears traces of the thinking of this era. One quirk was that not every intentional killing of another person without legal excuse is a murder. German law initially defines all unjustifiable homicides (i.e., all killings of humans not committed for self-defense or during war, etc.) as manslaughter (Totschlag).
The only way to get a murder conviction is to show one of the following aggravating circumstances under § 211 of the Criminal Code:
(2) A murderer under this provision is someone who kills a person
out of a lust to kill, to obtain sexual gratification, out of greed or otherwise base motives,
perfidiously or cruelly or by means constituting a public danger or
to facilitate or cover up another offence.
This is an interesting way to ban homicide. In most legal systems, if you kill another person intentionally without excuse, that is murder, period. There may be different levels within murder — first-degree, second-degree, capital, etc. — but all intentional killing is murder. Some jurisdictions may reduce murder to manslaughter if the killer was acting under extreme emotional disturbance, but that's usually pretty hard to prove.
German law doesn't follow this approach. It says even intentional killing is initially presumed to be manslaughter (Totschlag), and murder is reserved only for the types of killings listed in § 211. This means that if you come home and find your husband in bed with another man and shoot your husband, you are (very likely) not guilty of murder. Let's take another common situation: You get in an loud argument in a bar in which the other guy hurls vicious insults at you. You wait for the other guy outside, challenge him to a fight, and beat him to death. Again, this killing, on its own, would likely not be considered murder in Germany.
Why? In both of those situations, the offender didn't kill out of Mordlust (literally, "murder-lust"), for sex, greed, or other "base motives". German courts generally don't consider rage, revenge, drunkenness, or jealousy to be "base" motives. They're wrongful, of course, but they're not "base" in the legal sense, because they don't evince a calculated cruelty or callousness toward human life.
Further, in each situation above the offender had understandable reasons for hating the other person. Killing someone based merely on suspicions or rumors can constitute "base motives" because the response (murder) is so disproportionate (g) to the event (mere rumors or suspicions). But in the cases I described above, the killer had an understandable reason for his deadly rage. Understandable doesn't mean justifiable — it isn't, and the killer will get a prison sentence — but that it's not the particularly base and evil type of killing which counts as murder under German law.
In Stephan Ernst's case the assassination of Lübcke is clearly murder, as the judge found. I haven't read the judgement yet (the actual reasoning of the court is usually published only months after the decision is announced), but the circumstances of the killing furnish plenty of reasons for finding "base motives". Ernst planned the killing carefully, scouting out ways of gaining entry into Lübcke's home, which showing calculation. The murder was motivated by racism, xenophobia, and political terrorism, which German courts usually classify as "base motives".
Further, it was clearly "disproportionate", in the slightly odd sense discussed above. Lübcke's only fault was that, during a 2015 political speech, he said that people who objected to Merkel's decision to keep German borders open could go "leave this country anytime they want" if they refused to hold to German "values". Right-wing Germans immediately interpreted this as Lübcke giving preference to recently-arrived illegal immigrants over native ethnic Germans, which outraged them. Yet Lübcke's statement, although clumsy, was simply ordinary political rhetoric which hardly should have prompted any sort of violent response.
II. "Life" sentence
The mandatory sentence for murder in Germany is a life sentence, and that's what Ernst got. But wait, you might ask, I heard Germany has a fairly liberal criminal justice system. Life in prison seems pretty harsh!
You're right, but nobody serves actual life. The main reason for this is the 1977 "Life Imprisonment" decision of the German Federal Constitutional Court. The Court held that locking up someone for life without any hope of premature release would violate human dignity. The guarantee of human dignity obliges the state not to treat citizens as mere "objects" who can be disposed of or hidden away forever. The general principle that treating people as objects violates human dignity was developed in the 1950s (g) by German legal scholars. Human dignity is universal: Even convicted murderers must be treated as viable subjects with their own autonomy and individual wishes and rights. To lock someone up forever, with zero hope of release, inflicts severe psychological anguish and utterly denies the idea that people can change and reform, especially over decades.
The German government, defending the life-sentence law, pointed out that inmates serving life could always file a petition for clemency or pardon with the German federal president. The Court acknowledged this, but pointed out that clemency this is not a legal hope of release. Pardon and clemency are arbitrary decisions made by an executive official (in most cases, the German Federal President) who don't have to explain them the way courts have to explain their decisions. These unreviewable acts of mercy do not provide a sufficiently legally-regulated chance at freedom. Only a judicial process with standards and evidence can do this. Therefore, the Court held, the law must offer all persons sentenced to life in prison a genuine, meaningful chance at release under appropriate conditions.
III. So what does "life" mean in practice?
The 1977 Life Imprisonment decision meant that Germany had to revise its life-sentencing laws. One interesting fact is that, at the time the FCC handed down the "life imprisonment" decision, the average lifer was being paroled after only about 20 years. in prison But, as we've seen, the Court didn't think that the mere hope of parole was enough.
To respond to the FCC decision, the German Bundestag passed § 57a of the Criminal Code, which reads:
(1) The court suspends enforcement of the remainder of a sentence of imprisonment for life on probation where
1. 15 years of the sentence have been served,
2. the particular severity of the convicted person's guilt does not require its continued enforcement…
Under the new provisions, a prisoner sentenced to life had to become eligible for early release under law when he had served 15 years of his sentence, at the minimum.
How many prisoners get life in Germany? Here are some helpful charts from this German Ph.D thesis by Benjamin Steinhilber. First, the number of lifers in German prisons from 1977-2008:
Here's the number of life sentences per year handed down by German courts in the same time frame:
So as we can se, since reunification there have been only about 100 life sentences handed down by German courts per year. Not bad for a country of 83 million people.
How long do lifers serve now? What it boils down to is this: As a practical matter, a normal life sentence in Germany means you will be sent to prison for about 12-18 years. It's impossible to put a specific number here, because each state has its own practices and regulations, and each case is dealt with individually.
In general, what happens is that after a prisoner serves 15 years of his life sentence, § 57a of the German Criminal code says he must be released unless the "public security interest" forbids this. A life prisoner can request early release before 15 years, but the burden of proof is on him to prove he's safe for release. After 15 years of the sentence, the burden shifts, and the state must prove why the lifer shouldn't be released. The petition will be ruled on by a panel of judges called an "enforcement court' (g). The judges will often hire a psychiatrist to perform an assessment of the offender's 'social prognosis' or 'criminal prognosis'.
After reading the report and gathering other information, the judges will decide on the petition for early release. If the defendant's crime was serious, he's misbehaved in prison, and he's only in the first years of a long sentence, the decision will be short and simple: no. However, the rules specify that the longer a prisoner has been incarcerated, the more weight the judges should put on his interest in regaining freedom. This means, ideally, that it should be harder to keep someone in prison the longer they've been there. Especially after the Life Imprisonment case, German criminal law is built on the absolute presumption that everyone sentenced for a crime will certainly be released back into society at one point. The longer they stay inside, the higher the risk they will become 'institutionalized' and therefore unable to adapt to life on the outside.
IV. So what about "particularly severe" guilt?
After the law was reformed to put the "inflection point" for a life sentence at 15 years, some politicians and commentators complained this was insufficient for the most severe murders. In 1982 section 2 was added to § 57a, which says that for "particular[ly] severe" crimes, the prisoner doesn't become eligible for parole or probation at 15 years. However, the law doesn't say when he will become parole eligible — it only says that he won't become automatically parole eligible after 15 years in prison, and can be held longer.
Stephan Ernst was convicted of murder with "particularly severe" guilt. What does this mean? Well, to simplify a bit, it means that he gets a life sentence, but won't become parole-eligible after 15 years, because his crime was unusually serious. Once again, this isn't a hard-and-fast rule. The only thing German criminal law says is that a lifer must become parole eligible after he's served 15 years of his sentence, unless his crime was "particularly severe". If his crime was particularly severe, he doesn't become parole eligible at 15 years. Instead, the prison staff and the enforcement court can decide, on their own, when he should become parole eligible. As a practical matter, they tend to wait until he's served at least 20 years, and is likely to release him after about 25 years, unless there are compelling reasons not to.
And now we come to the question of how courts have defined "particularly (or extremely" severe guilt". Their approach has been to first define a "typical" or "ordinary" level of culpability for murder (Regelschuld). The Court then compares the murder in the case it's hearing right now to other murder cases. The Federal Constitutional Court ruled in 1992 (g):
"Particularly severe" guilt, in its meaning as a value judgment, refers to something which goes beyond the normal or customary, something exceptional […]. This ordinary meaning accords well with the legal meaning…[which] assumes such a case only when the overall nature of the crime, including the personality of the offender, deviates so much from experience in usual cases that the imposition of exceptional penalties appears appropriate."
Not particularly revealing, but that's the nature of German court decisions: Like Potter Stewart discussing obscenity, judges may not be able to define in advance what makes a murder particularly severe, but they will know it when they see it. As a practical matter, findings of "especially severe" guilt track the kind of criteria most people can understand: Mass murders, murders involving calculation and premeditation, torture, exploitation of children or the elderly, etc. This German blog post has a good summary. of the kinds of killings which have earned the "particularly severe" designation.
V. Post-Sentence Detention
We now come to the last thing the German legal system can do to keep criminals in jail: post-sentence detention. This legal institution was first conceived of as a way to keep highly dangerous offenders out of society even after they had served their sentences. We have to put ourselves in the position of an 'enforcement court' which has done all it could to keep the offender behind bars with repeated findings of the offender's "poor prognosis" for life on the outside. However, at some point the prisoner's sentence officially ends.
In these cases, the law formerly allowed for prison officials to request an order for post-sentence preventive detention (Sicherungsverwahrung) for prisoners whom they believed presented a continuing danger. If the court granted the request, the offender would be moved, at the end of his sentence, from prison into a secure psychiatric facility for "treatment". This was considered lawful because preventive detention was not considered a punishment, but rather a "measure for security and improvement", a host of technically non-punitive measures intended to assist in an offender's rehabilitation.
Needless to say, this law was controversial. Imagine you're a prisoner sentenced to 8 years for rape (believe it or not, this would be a fairly severe sentence even for a forcible rape in Germany). You don't participate in therapy or express any remorse (perhaps because you maintain your innocence). So they keep you in prison for almost the full 8 years. Just when you're about to be released back into society, however, the prosecution gets an order for preventive detention after your sentence. You're transferred from a prison to a secure, walled-in psychiatric hospital which looks quite a bit like a prison, ad may even be on the same grounds as a prison. Worse yet, there is no defined date when you must be released. Since you're considered dangerous and in need of further rehabilitation, you have to stay behind bars as long as the authorities think you're still a danger. This could end up, in extreme cases, becoming a de facto life sentence.
From a lay perspective, whether you think this is an outrage probably depends on whether you think 8 years in prison is a suitable sentence for rape (most people, including most Germans, would find that too low). But from a legal perspective, we have to think about the prohibition on ex post facto laws: You can only be punished for a crime according to the law that existed at the time you committed the crime. The authorities can't just decide to increase your sentence from 10 to 20 years after you've served 5 years of your sentence. Further, conditions in secure psychiatric facilities are very close to prison — so close that any casual observer would be unable to distinguish the two. This hinders the argument that "we're not punishing them, we're treating them."
Throughout the early 2000s, the legal institution of post-sentence preventive distinction was hugely controversial in Germany. To make a very long story short, the European Court of Human Rights and the German Federal Constitutional Court (g), after a long and disputatious back-and-forth, settled on a solution (pdf) to make preventive detention constitutional. First, the Courts required that the authorities ensure there was a "significant difference" between prison and preventive detention. Detainees must be allowed as many freedoms as possible consistent with public safety and offered genuine, meaningful, intensive therapy. The promise that they will be "treated" must be more than lip service. Second, to avoid the unfair retroactive effect, the judge must make a finding that preventive detention is appropriate when he or she hands down the original sentence. That is, the judge must look far into the future — 10, 20, or 30 years from now, when the fixed-term criminal sentence expires — and try to guess whether it might be necessary to continue keeping the defendant locked up for reasons of public safety.
The judge's finding doesn't mean the defendant will receive preventive detention — it only means the defendant can receive it if, decades later, he is found to present a continuing danger to society. This is an awkward solution, since it relies on the idea that judges can predict the future course of a defendant's stay in prison. However, it was necessary to avoid the retroactivity problem. Previously, a defendant might first learn only a few weeks before his release that the authorities intended to try to keep him behind bars. Now, under the new rule, he knows from the beginning of his prison sentence that this may be a possibility. That might not seem like much comfort, but so far the new regime has survived in the courts.
The judge in Ernst's case also entered a finding that he should be eligible for post-sentence preventive detention. So he received the harshest sentence possible under German law: a murder (life sentence, 15 year minimum) with a finding of particularly severe guilt (raising the 15 year minimum to 25 or so), and an order from the sentencing court finding that you are eligible for mandatory psychiatric treatment in a closed facility even after you leave prison. If the judge makes all three of these findings, you can be certain you'll stay in prison for at least 25 years, and stay confined much longer, possibly until you actually do die in prison.
As you can see, the law here is complex and may seem somewhat arbitrary. Yet the thing to keep in mind, I think, is that many of the rules are designed to ensure that sentencing in Germany is flexible and individualized. There's no such thing as a mandatory fixed sentence in Germany — all sentences are determined individually by courts after hearing evidence and soliciting expert opinions. This individualization continues in prison, where enforcement courts and prison administrators consistently evaluate and re-evaluate whether prisoners should remain behind bars. The system has been criticized as too lax and too dependent on psychiastrists and psychologists (one German killer, Thomas Kurbjuhn, wrote a book (g) entitled "How Criminals Trick their Therapists: The Truth about Forensic Psychiatry"). Nevertheless, it works reasonably well — recidivism rates in Germany are no higher than in countries with much tougher justice systems. And the German system broadcasts German officialdom's commitment to principles of proportionality and due process.
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4 thoughts on "What's the Maximum Punishment under German Criminal Law?"
Stoppercrime says:
Thank you for the update on Soering. And
another podcast episode will be something to look forward to.
You raise an interesting point about a more sceptical appraisal being on the horizon. So far the MSM have been very slow to jump on the sceptics' band wagon. But surely this is now the most newsworthy angle?
And what of Elizabeth?
Will she be publishing soon?
I suspect she is in the land of scarecrows.
Soering's Wikipedia entry is now more substantial
Whilst carefully worded, it still pushes the DNA misinformation.
"On 27 September 2017, Harding held a press conference and advocated for Söring's release together with another investigator, Richard L. Hudson Jr. They also presented expert testimony of three forensic scientists who agreed that Söring's DNA did not match the blood found on the crime scene"
Just to be clear:
1. The DNA extracted does not necessarily match the blood donor. It may be from the sweat or skin cells of another person (Derek Haysom)
2. The correct conclusion is that the DNA results do not exclude Soering
fs007 says:
Being a German, i have to add that this "individual psychiatric evaluation" is a dangerous thing.
Here is a case, where an innocent man was put into a psychiatric forensic clinic for 6 years: https://en.wikipedia.org/wiki/Gustl_Mollath
The case is quite funny to read, but was not funny for the man.
Regarding Soering's book announcement:
As we can read here (https://www.penguinrandomhouse.de/Buch/Rueckkehr-ins-Leben/Jens-Soering/C-Bertelsmann/e584597.rhd), the announcement doesn't claim he is innocent, but only says "there are doubts of his guilt".
The book itself may be interesting, but Soering is no typical case for a long term prisoner being free at last: Most of them do not get the help,he got.