Sentencing in Germany: Explaining Long-Term Stability in the Structure of Criminal Sanctions and Sentencing

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I

INTRODUCTION

In the last decades, much has been written on significant changes in the use of prison sentences and imprisonment. These changes are assumed to reflect growing punitiveness and a rapidly spreading demand for public protection through long periods of confinement. In particular, the heavy inflation of the U.S. prison population has triggered scholarly attempts to explain an apparently insatiable appetite for imprisonment. (1) Only marginal attention has been paid to the question of why consistency in sentencing, stability in sentencing outcomes, and a modest use of imprisonment can be observed in certain countries more than in others. For example, remarkable stability in the structure of criminal sanctions has been on display in Germany since the end of the 1960s, when a major law amendment gave priority to fines and significantly restricted the use of prison sentences. Since the end of the 1960s, now a period of four decades, four out of five criminal sanctions imposed by German criminal courts are day fines. (2) Although some variation in rates of imprisonment can be observed over the last forty years in Germany, upward and downward swings have been limited. Criminal court statistics also show that the bulk of criminal sentences fall in the lower third of the range of sentences carried by criminal offense statutes. In spite of a statutory framework of sentencing that does not provide effective guidance for judges, consistency and stability are evidently achieved through channels other than authoritative sentencing guidelines. At first glance, it seems that significant restraints are at work in the sentencing process that prevent the use of protracted prison sentences as a punitive and deterrent response, and those restraints are unaffected by the rhetoric of German politicians--like that of their peers elsewhere--in favor of punitive responses to crime. (3)

A first clue in the analysis of what might serve as a restraint can be found in discourses originating in German politics about broadening the range of preventive detention (Sicherungsverwahrung) as a response to dangerous offenders. (4) Germany was on trial before the European Court of Human Rights on several occasions over the last two years, facing allegations of violations of Article 5 of the European Convention on Human Rights due to the introduction of a retroactive security measure allowing indeterminate (and possibly lifelong) preventive detention for offenders deemed dangerous (particularly violent and sexual offenders). (5) In the court hearings, the German Federal Ministry of Justice presented an interesting argument to the European Court. The Ministry of Justice lawyers argued that this type of security measure (preventive detention for dangerous habitual offenders) was contributing to the relatively low imprisonment rate observed in Germany. (6) Elaborating along this line of reasoning, Winfried Hassemer has argued that the advances in sentencing doctrine and sentencing theory--as well as corresponding standards of reasoning, transparency, and accountability imposed on trial courts by appellate courts and the Federal Court of Justice (Bundesgerichtshof)--have resulted in concentrating the political pursuit of security on this "second track" of criminal sanctions focused on preventive detention instead of personal guilt. (7) In fact, imprisonment rates have been on the decline in Germany for at least a decade, and in some German states this decline is so marked that prison capacity has had to be reduced significantly. The General Accounting Office of the State of Hamburg recently advised the state government to respond to the dramatic decline in the Hamburg prison population by adjusting the prison budget and reducing the prison capacity accordingly. (8)

The argument brought forward in favor of preventive detention is based on a logic of guilt-dependent criminal punishment, restricting not only the imposition of a criminal sentence, but also the length of a prison sentence. …

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