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Prof. Dr. Joerg Kinzig The German model of long-term detention University of Tuebingen/Germany Roundtable on ' Actual life sentence ' Organized by the.

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Presentation on theme: "Prof. Dr. Joerg Kinzig The German model of long-term detention University of Tuebingen/Germany Roundtable on ' Actual life sentence ' Organized by the."— Presentation transcript:

1 Prof. Dr. Joerg Kinzig The German model of long-term detention University of Tuebingen/Germany Roundtable on ' Actual life sentence ' Organized by the Hungarian Helsinki Committee in Budapest

2 Heinrich Pommerenke Germany‘s longest prisoner Served a sentence of 49 years Died in a prison hospital at the age of 71. Terms as long as this one are not the rule but possible. I Introduction: The case of Heinrich Pommerenke

3 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences

4 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code)

5 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

6 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

7 II Brief overview of Imprisonment in Germany Types of Sanctions in the German Penal Code Punishments Fines Prison Sentences Measures Stationary Measures Mental Hospital Order Custodial Addiction Treatment Preventive Detention

8 II Brief overview of Imprisonment in Germany Different Types of Imprisonment 2008

9 II Brief overview of Imprisonment in Germany Duration of Prison Terms

10 II Brief overview of Imprisonment in Germany Sentences of Life Imprisonment

11 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

12 Mandatory Punishment for Murder § 211 of the Penal Code Murder under specific aggravating circumstances (1) Whosoever commits murder under the conditions of this provision shall be liable to imprisonment for life. (2) A murderer under this provision is any person who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence. III Imposition and execution of life imprisonment in Germany

13 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

14 1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden

15 1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden Constitutional issues brought forward by the Verden Court Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution.

16 1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden Constitutional issues brought forward by the Verden Court Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. The constitutional right of freedom cannot be taken away for life.

17 1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden Constitutional issues brought forward by the Verden Court Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. The constitutional right of freedom cannot be taken away for life. The mandatory life sentence in section 211 makes it impossible to consider mitigating circumstances which is a violation of the principle of equality before the law.

18 1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden Constitutional issues brought forward by the Verden Court Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. The constitutional right of freedom cannot be taken away for life. The mandatory life sentence in section 211 makes it impossible to consider mitigating circumstances which is a violation of the principle of equality before the law. The concept of life sentence violates the most important goal of a punishment to reintegrate the offender into the community.

19 1. The 1977 Ruling of the Federal Constitutional Court Challenge from State Court of Verden Constitutional issues brought forward by the Verden Court Psychological damages caused by very long prison terms contravene the guarantee of human dignity in article 1 of the German constitution. The constitutional right of freedom cannot be taken away for life. The mandatory life sentence in section 211 makes it impossible to consider mitigating circumstances which is a violation of the principle of equality before the law. The concept of life sentence violates the most important goal of a punishment to reintegrate the offender into the community. The existing system of pardons for lifers is not regulated by law.

20 1. The 1977 Ruling of the Federal Constitutional Court. Reasoning

21 1. The 1977 Ruling of the Federal Constitutional Court. Freedom to introduce legislation is limited - by the inviolability of the dignity of man (article 1) - by the principle of equality (article 3), - the rule-of-law principle and - the principle of a welfare state. Reasoning

22 1. The 1977 Ruling of the Federal Constitutional Court. Freedom to introduce legislation is limited - by the inviolability of the dignity of man (article 1) - by the principle of equality (article 3), - the rule-of-law principle and - the principle of a welfare state. Principle of proportionality: Every punishment has to be in reasonable proportion - to the gravity of the offence and - personal guilt of the offender. Inhumane and degrading punishments have to be forbidden. Reasoning

23 1. The 1977 Ruling of the Federal Constitutional Court Reasoning „It is […] the duty of the state to maintain the fundamental requirements of the individual that account for a humane living. Thus, it would be incompatible with human dignity if the state took away a person‘s freedom without there being at least the chance of that person ever regaining his freedom.“

24 1. The 1977 Ruling of the Federal Constitutional Court „It is […] the duty of the state to maintain the fundamental requirements of the individual that account for a humane living. Thus, it would be incompatible with human dignity if the state took away a person‘s freedom without there being at least the chance of that person ever regaining his freedom.“ „(This chance, has to be) concrete and realizable in principle. For it is a violation of human dignity if the prisoner has to give up all hope of ever regaining his freedom regardless of any developments of his personality.” Reasoning

25 1. The 1977 Ruling of the Federal Constitutional Court. The Court accepted the notion of a treatment-oriented imprisonment. Aim of the imprisonment: Principle of resocialization. “To enable the prisoner to lead a life without crime in the future” (section 2 of the New Prison Act from 1976) Reasoning

26 1. The 1977 Ruling of the Federal Constitutional Court. The Court accepted the notion of a treatment-oriented imprisonment. Aim of the imprisonment: Principle of resocialization. “To enable the prisoner to lead a life without crime in the future” (section 2 of the New Prison Act from 1976) It is made clear by the Court that those rules also apply to prisoners sentenced to life: Reasoning

27 1. The 1977 Ruling of the Federal Constitutional Court. The Court accepted the notion of a treatment-oriented imprisonment. Aim of the imprisonment: Principle of resocialization. “To enable the prisoner to lead a life without crime in the future” (section 2 of the New Prison Act from 1976) It is made clear by the Court that those rules also apply to prisoners sentenced to life: “The prison institutions have the duty to strive towards the resocialization, to preserve the prisoners’ ability to cope with life and to counteract the negative effects of incarceration and destructive personality changes that go with it.” Reasoning

28 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

29 § 57 a 1) The court shall grant conditional early release from a sentence of imprisonment for life under an operational period of probation, if fifteen years of the sentence have been served; the particular seriousness of the convicted persons guilt does not require its continued enforcement; and the requirements of § 57(1) 1st sentence Nos 2 and 3 are met. The conditions to which reference is made in No. 3 are that 2 the release is appropriate considering public security interests; and 3 the convicted person consents. 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code)

30 2007 Ruling of the Federal Constitutional Court “(If fifteen years of the sentence have been served) and the particular seriousness of the convicted person’s guilt does not require its continued enforcement, it adds weight to the claim of the prisoner to guarantee his human dignity and his personality. Higher demands are to be made on the reliability of the prognosis (of his dangerousness) […]”.

31 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

32 1. Overview Measures of rehabilitation and incapacitation

33 1. Overview Persons in Mental Hospitals & Custodial Addiction Treatments

34 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

35 German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence 2. Preventive Detention

36 German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence

37 2. Preventive Detention German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence

38 2. Preventive Detention German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence

39 2. Preventive Detention German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence

40 2. Preventive Detention German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence

41 2. Preventive Detention German Law prior to 1998 Initial Crime Previous Conviction 1 Imprisonment Prognosis of dangerousness After 10 years: Automatic release ImprisonmentPreventive detention Prognosis of dangerousness Possibility of second preventive detention Ordering of preventive detention Previous Conviction 2 End of full prison sentence

42 German Law today ( simplified ) End of full prison sentence ImprisonmentPreventive detention Prognosis of dangerousness Ordering of preventive detention 2. Preventive Detention Initial Crime

43 Only a Vision? Preventive detention Prognosis of dangerousness Ordering of preventive detention 2. Preventive Detention

44 Only a Vision? Minority Report – 2002 science fiction movie by Steven Spielberg 2. Preventive Detention

45 Orderings of Preventive Detention

46 People in Preventive Detention 2. Preventive Detention

47 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

48 Original Study: „Preventive Detention Put to Test“ (published in 1996) Data Collection : Summer 1993 Reconviction of Dangerous Recidivists: Study Design and Methods 318 persons sentenced to preventive detention in in three German states

49 Original Study: „Preventive Detention Put to Test“ (published in 1996) Data Collection : Summer persons sentenced to preventive detention in in three German states Reconviction of Dangerous Recidivists: Study Design and Methods 183 persons convicted in (severe sexual or violent offences), although they fulfilled the formal requirements not sentenced to preventive detention

50 Original Study: „Preventive Detention Put to Test“ (published in 1996) Data Collection : Summer persons sentenced to preventive detention in in three German states Reconviction of Dangerous Recidivists: Study Design and Methods 183 persons convicted in (severe sexual or violent offences), although they fulfilled the formal requirements not sentenced to preventive detention Follow-Up Study analysis of their actual criminal career (2002 and later on) Source: Federal Criminal Records Bureau

51 Main Results of the Study Sample and deceased detainees Survey 1994 Survey 2002 died/ older than 90 Sample Total

52 older than 90 1 Main Results of the Study Sample and deceased detainees Survey 1994 Survey 2002 died/ older than 90 Sample Total

53 older than 90 died in Prison died after release unexplained Main Results of the Study Sample and deceased detainees Survey 1994 Survey 2002 died/ older than 90 Sample Total

54 older than 90 died in Prison died after release unexplained Main Results of the Study Sample and deceased detainees Survey 1994 Survey 2002 died/ older than 90 Sample Total Rec(2003)23 Council of Europe “in order to allow terminally ill prisoners to die with dignity, consideration should be given to releasing them so that they may be cared for and die outside prison”

55 3. Main results of an empirical study of preventive detention Status of the 286 Preventive Detainees

56 3. Main results of an empirical study of preventive detention

57 Status of the 286 Preventive Detainees 3. Main results of an empirical study of preventive detention

58 Status of the 286 Preventive Detainees 3. Main results of an empirical study of preventive detention

59 Status of the 286 Preventive Detainees 3. Main results of an empirical study of preventive detention

60 77 67,0%

61 77 67,0%

62 77 67,0%

63

64

65

66

67

68 German Law prior to 1998 Initial Crime After 10 years: Automatic release ImprisonmentPreventive detention Ordering of preventive detention End of full prison sentence

69 German Law prior to 1998 Initial Crime After 10 years: Automatic release ImprisonmentPreventive detention Ordering of preventive detention End of full prison sentence German law after 1998 If a person has spent ten years in preventive detention, the court shall declare the measure terminated if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims

70

71

72

73 Automatic release after ten years despite Negative Prognosis

74

75

76

77 Criminal Career of the 162 Persons of the Control Group

78

79

80

81 Outline I.Introduction: The case of Heinrich Pommerenke II.Brief overview of the German sanction system and the use of prison sentences III.Imposition and execution of life imprisonment in Germany 1. The 1977 Ruling of the Federal Constitutional Court 2. The regulations on conditional early release from life imprisonment (s. 57a German Criminal Code) IV.Other indefinite sanctions: Measures of rehabilitation and incapacitation 1. Overview 2. Preventive Detention 3. Main results of an empirical study of preventive detention V.Conclusion

82 V Conclusion 1.The German Federal Constitutional Court has confirmed the constitutionality of the sentence of life imprisonment in 1977.

83 V Conclusion 1.The German Federal Constitutional Court has confirmed the constitutionality of the sentence of life imprisonment in However, the guarantee of the human dignity (art. 1 of the German Constitution) requires that every prisoner still has a concrete and realizable chance to regain his freedom.

84 V Conclusion 1.The German Federal Constitutional Court has confirmed the constitutionality of the sentence of life imprisonment in However, the guarantee of the human dignity (art. 1 of the German Constitution) requires that every prisoner still has a concrete and realizable chance to regain his freedom. 3.In Germany courts shall grant conditional early release from life sentence if a)fifteen years of the sentence have been served; b)the particular seriousness of the convicted person’s guilt does not require its continued enforcement; and c)the convicted person is not dangerous any more.

85 V Conclusion 1.The German Federal Constitutional Court has confirmed the constitutionality of the sentence of life imprisonment in However, the guarantee of the human dignity (art. 1 of the German Constitution) requires that every prisoner still has a concrete and realizable chance to regain his freedom. 3.In Germany courts shall grant conditional early release from life sentence if a)fifteen years of the sentence have been served; b)the particular seriousness of the convicted person’s guilt does not require its continued enforcement; and c)the convicted person is not dangerous any more. 4.The number or prisoners detained in mental hospitals has increased; preventive detention has been extended and broadened repeatedly over the last ten years.

86 V Conclusion 1.The German Federal Constitutional Court has confirmed the constitutionality of the sentence of life imprisonment in However, the guarantee of the human dignity (art. 1 of the German Constitution) requires that every prisoner still has a concrete and realizable chance to regain his freedom. 3.In Germany courts shall grant conditional early release from life sentence if a)fifteen years of the sentence have been served; b)the particular seriousness of the convicted person’s guilt does not require its continued enforcement; and c)the convicted person is not dangerous any more. 4.The number or prisoners detained in mental hospitals has increased; preventive detention has been extended and broadened repeatedly over the last ten years. 5.A follow-up examination of the criminal career of preventive detainees in Germany has shown that a large part of the detainees released on probation did not suffer a relapse.

87 V Conclusion 1.The German Federal Constitutional Court has confirmed the constitutionality of the sentence of life imprisonment in However, the guarantee of the human dignity (art. 1 of the German Constitution) requires that every prisoner still has a concrete and realizable chance to regain his freedom. 3.In Germany courts shall grant conditional early release from life sentence if a)fifteen years of the sentence have been served; b)the particular seriousness of the convicted person’s guilt does not require its continued enforcement; and c)the convicted person is not dangerous any more. 4.The number or prisoners detained in mental hospitals has increased; preventive detention has been extended and broadened repeatedly over the last ten years. 5.A follow-up examination of the criminal career of preventive detainees in Germany has shown that a large part of the detainees released on probation did not suffer a relapse. 6.The reliability of decisions based on prognoses of dangerousness is questionable.

88 Thank you for your attention! Prof. Dr. Joerg Kinzig


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