Prof. Dr. Joerg Kinzig

1
The German modelof long-term detention
Roundtable on 'Actual life sentence'Organized by
the Hungarian Helsinki Committee in Budapest
Prof. Dr. Joerg Kinzig
University of Tuebingen/Germany
2
I Introduction The case of Heinrich Pommerenke

• Heinrich Pommerenke
• Germanys 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.

3
Outline

1. Introduction The case of Heinrich Pommerenke
2. Brief overview of the German sanction systemand
   the use of prison sentences

4
Outline

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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
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

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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
III Imposition and execution of life imprisonment
in Germany

• 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.

13
Outline

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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
Reasoning

• 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.

.
22
1. The 1977 Ruling of the Federal Constitutional
Court
Reasoning

• 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.

.
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 persons 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
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 persons 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.
25
1. The 1977 Ruling of the Federal Constitutional
Court
Reasoning

• 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)

.
26
1. The 1977 Ruling of the Federal Constitutional
Court
Reasoning

• 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

.
27
1. The 1977 Ruling of the Federal Constitutional
Court
Reasoning

• 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.

.
28
Outline

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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
2. The regulations on conditional early release
from life imprisonment (s. 57a German Criminal
Code)

•  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.

30
2. The regulations on conditional early release
from life imprisonment (s. 57a German Criminal
Code)
2007 Ruling of the Federal Constitutional
Court (If fifteen years of the sentence have
been served) and the particular seriousness of
the convicted persons 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

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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
2. Preventive Detention
German Law prior to 1998
Initial Crime
Previous Conviction 1
Previous Conviction 2
After 10 years Automatic release
End of full prison sentence

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

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

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

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

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

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

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

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

Preventive detention
Prognosis of dangerousness
Ordering of preventive detention
44
Only a Vision?
2. Preventive Detention

• Minority Report 2002 science fiction movie by
  Steven Spielberg

45
2. Preventive Detention
Orderings of Preventive Detention 1980-2005
46
2. Preventive Detention
People in Preventive Detention
47
Outline

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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
Reconviction of Dangerous RecidivistsStudy
Design and Methods
Original Study Preventive Detention Put to
Test (published in 1996)
Data Collection Summer 1993
318 persons sentenced to preventive detention
in 1981-1990 in threeGerman states
49
Reconviction of Dangerous RecidivistsStudy
Design and Methods
Original Study Preventive Detention Put to
Test (published in 1996)
Data Collection Summer 1993
318 persons sentenced to preventive detention
in 1981-1990 in threeGerman states
183 persons convicted in 1988-1990 (severe
sexual or violent offences),although they
fulfilled the formal requirements not sentenced
to preventive detention
50
Reconviction of Dangerous RecidivistsStudy
Design and Methods
Original Study Preventive Detention Put to
Test (published in 1996)
Data Collection Summer 1993
318 persons sentenced to preventive detention
in 1981-1990 in threeGerman states
183 persons convicted in 1988-1990 (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 318 318 32 286
52
Main Results of the Study
Sample and deceased detainees
Survey 1994 Survey 2002 died/older than 90 Sample
Total 318 318 32 286
older than 90
1
53
Main Results of the Study
Sample and deceased detainees
Survey 1994 Survey 2002 died/older than 90 Sample
Total 318 318 32 286
older than 90 died in Prison died after release unexplained
1 12 13 6
54
Main Results of the Study
Sample and deceased detainees
Survey 1994 Survey 2002 died/older than 90 Sample
Total 318 318 32 286
older than 90 died in Prison died after release unexplained
1 12 13 6
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
Status of the 286 Preventive Detainees
57
3. Main results of an empirical study of
preventive detention
Status of the 286 Preventive Detainees
58
3. Main results of an empirical study of
preventive detention
Status of the 286 Preventive Detainees
59
3. Main results of an empirical study of
preventive detention
Status of the 286 Preventive Detainees
60
77 67,0
61
77 67,0
62
77 67,0
63
(No Transcript)
64
(No Transcript)
65
(No Transcript)
66
(No Transcript)
67
(No Transcript)
68
German Law prior to 1998
Initial Crime
After 10 years Automatic release
End of full prison sentence
Imprisonment
Preventive detention

Ordering of preventive detention
69
German Law prior to 1998
Initial Crime
After 10 years Automatic release
End of full prison sentence
Imprisonment
Preventive detention

Ordering of preventive detention
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
(No Transcript)
71
(No Transcript)
72
(No Transcript)
73
Automatic release after ten years despite
Negative Prognosis
74
(No Transcript)
75
(No Transcript)
76
(No Transcript)
77
Criminal Career of the 162 Persons of the Control
Group
78
(No Transcript)
79
(No Transcript)
80
(No Transcript)
81
Outline

• Introduction The case of Heinrich Pommerenke
• Brief overview of the German sanction systemand
  the use of prison sentences
• 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)
• 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

• The German Federal Constitutional Court has
  confirmed the constitutionality of the sentence
  of life imprisonment in 1977.
• 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

• The German Federal Constitutional Court has
  confirmed the constitutionality of the sentence
  of life imprisonment in 1977.
• 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.
• In Germany courts shall grant conditional early
  release from life sentence 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 convicted person is not dangerous any more.

85
V Conclusion

• The German Federal Constitutional Court has
  confirmed the constitutionality of the sentence
  of life imprisonment in 1977.
• 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.
• In Germany courts shall grant conditional early
  release from life sentence 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 convicted person is not dangerous any more.
• 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

• The German Federal Constitutional Court has
  confirmed the constitutionality of the sentence
  of life imprisonment in 1977.
• 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.
• In Germany courts shall grant conditional early
  release from life sentence 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 convicted person is not dangerous any more.
• The number or prisoners detained in mental
  hospitals has increased preventive detention has
  been extended and broadened repeatedly over the
  last ten years.
• 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

• The German Federal Constitutional Court has
  confirmed the constitutionality of the sentence
  of life imprisonment in 1977.
• 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.
• In Germany courts shall grant conditional early
  release from life sentence 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 convicted person is not dangerous any more.
• The number or prisoners detained in mental
  hospitals has increased preventive detention has
  been extended and broadened repeatedly over the
  last ten years.
• 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.
• The reliability of decisions based on prognoses
  of dangerousness is questionable.

88
Thank you for your attention!
Prof. Dr. Joerg Kinzig e-mail Joerg.Kinzig_at_jura.u
ni-tuebingen.de