How much punishment must be?

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Pretrial detention center Berlin Moabit

Photo: imago images / Rolf Kremming

A frequently recurring constellation: There is a report in the newspaper or in other media about a criminal offense or criminal trial.

If the matter is somewhat spectacular and / or interesting, a lively struggle for the "appropriate" punishment soon begins in forums and letters to the editor.

When it comes to acts of public interest, politicians like to interfere, expressing their view that once again "all the rigor of the rule of law" is required, "harsh punishments" are desired, the perpetrators should be "heavily punished will ", etc. To demand a" mild punishment "in advance and without knowledge of the case, nobody dares nowadays anymore;

With the desire for "full hardship" one is usually on the right side in the media.

Cases and experiences

Finally, one could again witness an outbidding punishment rage against the "Lamborghini speeders" from the A66, whose alleged "murder" act, in connection with expensive cars and of un-German origin, within hours the "lifelong" as the minimum need for punishment on the Internet -Tribunal hoisted.

We have now learned that the accident occurred at a speed that German family sedans are considered to be the standard for rapid travel, and that it was probably caused by a driving error by a third party.

So it can go!

A public manhunt with a profile for a fugitive does not happen every day;

one would have a lot to look for.

But our topic is not the "lawn", which is known to only be committed by others and of course deserves the toughest punishments, unless we ourselves tragically discovered the speed control a little too late and our road-threatening emergency braking was in vain.

Rather, we want to deal with the punishment itself, more precisely: with the amount of the penalty.

Many people take it for granted that the penalties in the German criminal justice system are almost always too low.

In the relevant forums there is hardly any lack of expression of contempt for the allegedly "ridiculous", inadequate, ineffective punishments which, according to legend, even serious criminals - or those who want or could become one - can count on the German criminal justice system according to exact knowledge of newspaper readers, magazine viewers and Internet right-wing politicians consists almost exclusively of "do-gooders", prayer sisters, wimp and illusionists who mischievously threaten violent criminals with the finger, disregard victims and either do not punish the worst crimes or punish them with harsh penalties Boiled intensive offenders from the age of 14 can only laugh.

Thomas Fischer, arrow to the right

Born in 1953, is a legal scholar and was Chairman of the 2nd Criminal Senate of the Federal Court of Justice.

He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.

The only effective remedy and at the same time the recipe, through the application of which everything could become as orderly, crime-free and peaceful as it used to be, would, in the opinion of many citizens, be a significant increase in all penalties, including youth criminal sanctions, a much more frequent and long-term arrangement of the Pretrial detention, extension of life imprisonment and preventive detention as well as severe restrictions on the suspension of sentences and the remaining suspension of sentences on probation.

The states in which they are implemented guarantee the success of these measures, for example the USA, Russia, China or Iran, islands of peaceful serenity and civic comfort.

No more bitter jokes!

You know, dear readers, that the opposite is true, and if you don't know, you can easily find out if he / she takes an hour or two for the subject of "crime and the fight against crime", which is supposed to be the majority of the people Citizens thinks of paramount importance.

In fact, the crime rate in Germany is falling on average, problematic areas of crime in particular often evade the direct influence of threats and penalties imposed and, incidentally, after decades of experience and research, there is hardly anything to suggest that a positive deterrent effect and a lawful ethos mainly through severe penalties. 

Penalty and offenses

Hardly anyone would come from the incomplete description of a life situation, i.e. the action of a person and its consequences, without any detour via the law and without asking immediately to a level of punishment that would be appropriate in his opinion.

After all, what does "appropriateness" mean other than an accurate, fair relationship between cause and consequence?

One could e.g.

B. report: A drove his car on the federal motorway at a speed of 180 km / h.

He collided with the vehicle of B., the driver B and his passenger were killed.

What are the criminal consequences of this?

Anyone who either replies that murderer A must be locked up for life or that poor A must absolutely be acquitted has not considered the essential thing: it depends.

In the constitutional state, one is not punished because one has done something that appears "punishable", that is outraged or that the healthy public would like to see punished.

This would not only Art. 103 para. 2 GG contradict what the criminality of an act requires that these at the time of the action already in a formal law

and

threatened was.

If you think about it a little realistically, it wouldn't work at all: Ad hoc criminal liability according to "popular feeling" would be nothing more than a general culture of lynch and arbitrariness.

Even states or political systems that allegedly represent such concepts always only mean the (uncontrolled) rule of a small group of people who hold power: even in the Nazi state, it was by no means "the people" that drove the economy Requested and implemented the death penalty for even relatively minor offenses.

The much-invoked "little man" and "national comrade" was not the master of the Nazi judiciary, but its object.

"Facts", ie certain descriptions of a criminal act, are subject to the legal reservation;

Unlike mere administrative injustice, they may not be formulated by the executive, such as the police.

In addition, they are necessarily associated with a certain threat of punishment: For a legally

act with a legally

success, a legally

penalty is threatened.

In this way, according to the constitution and legislature, citizens can inform themselves and decide whether they want to commit the act or not.

There is no indefinite punishment and no retroactive criminal liability.

If there is a "loophole" in the legal descriptions, action is not punishable.

This is a basic rule of a legally constituted state: In principle, "everything" is not forbidden in the event of a penalty and requires permission in individual cases, but conversely, the state must precisely determine from the infinite number of possible actions those that are to be punishable;

and he bears the burden of proof for this.

The so-called and nowadays much lamented "loophole" is the lifeblood of constitutional criminal law. 

Point penalties and penalties

In principle, the German Criminal Code (StGB) does not recognize any "point penalties": There are no fixed rates for imprisonment or fines for certain offenses, for example in accordance with tables or calculation programs in which you only have to enter some data about the accused and then comes to a predetermined legal consequence.

The only exception is the life imprisonment in its form as an "absolute", ie quantitatively fixed penalty, which is only threatened for murder and for two offenses from the International Criminal Code.

In another 20 or so cases, life imprisonment is just one option alongside other "early" sentences.

Life imprisonment is fundamentally unjust because it breaks the system of individual, gradual guilt by jumping into "immeasurability" and no longer tries to do justice to the complexity of the acts.

It is a symbolic concession to an intuitive need for revenge of the "popular feeling".

Anyone who predicts or claims that there will be so and so much punishment for this or that act is either making himself important or alluding to certain routines and customary practices that are used in practice in mass crimes without serious individual differences: Traffic (§ 316 StGB) z.

B. In an OLG district or federal state, first-time offenders are punished with a fine of 30 daily rates, the second time with a short suspended sentence (e.g. three months) and the third time with imprisonment without probation.

However, this does not arise from a statutory provision, but from the fact that it is neither sensible nor practicable to carry out a highly individual sentence for such mass offenses: Incidentally, this would lead to the number of (sentence) appeals increasing by leaps and bounds. 

Practically all criminal offenses provide for a "penalty framework".

Its general, absolute limits result from paragraphs 38 and 40 StGB: imprisonment is at least one month and at most 15 years, fines at least five and a maximum of 360 daily rates for each individual offense.

The daily rate for the fine results from one thirtieth of a monthly net income.

If several independent offenses are tried at the same time, a "total penalty" must be formed.

This is not the sum of all individual penalties (this is how it is done with fines for administrative offenses; they are simply added if necessary), but the highest individual penalty is increased to a maximum of just below this sum (Sections 53, 54 StGB).

Example: If three offenses are imposed three times a year imprisonment, the total sentence can be between one year and one month (minimum) and two years and eleven months (maximum).

What is "less difficult" must be determined on a case-by-case basis

The Criminal Code (StGB), which currently contains more than 500 paragraphs, has a "General Part" (AT) and a "Special Part" (BT).

The OT contains general rules (when does the criminal law apply; what is an attempt; what is guilt; what is perpetration; what types of punishment are there; when can be suspended; statute of limitations; etc.).

The BT contains, divided into sections, the individual facts, i.e. the legal descriptions of the criminal acts and the legal consequences (penalties) that are threatened in the event of a culpable commission.

The penalties for the individual criminal offenses of the BT (i.e. manslaughter, theft, robbery, fraud, rape) apply to the normal offenses of the respective offense.

In addition, there are general rules in the AT according to which these limits can be mitigated (to a maximum of three quarters of the normal limit) (e.g. if an act was only attempted) or must (if the accused is not the perpetrator, but only an assistant) .

A moderation of the frame that was frequently undertaken in the past concerned a considerable reduction in the ability to inhibit due to mental illness and in particular due to acute intoxication.

In this respect, however, the case law has changed in the past few years: Self-inflicted drunkenness no longer justifies a reduction in the range of sentences.

In addition to such reductions for reasons specified by law, there are also so-called "less severe cases" for which a milder framework is threatened for the individual offenses (e.g. in the event of dangerous bodily harm (Section 224 (1)) or robbery (Section 249 (2) )).

What is "less difficult" is not in the law;

this must be determined on a case-by-case basis in accordance with the general rules on sentencing. 

Sentencing

There are a lot of suspicions, misconceptions, judgments and rumors about the sentencing by the criminal courts.

Some believe or demand that criminal judges should be a kind of "machine" into which facts and constituent elements are fed in at the top and a result drawn out at the bottom - if possible always and everywhere the same.

This is nonsense.

You don't need a judge for this, but pocket calculators or assistants who can look up any "taxes" in tables.

But that would not do justice to the diversity of life, the principle that we punish according to individual guilt, and the constitutional independence of judges.

There is no entitlement to always receive the same punishment for "the same" act anywhere in Germany and from any judge.

Therefore it is neither “wrong” nor unjust if Judge A imposes two years for a certain act and Judge B two years and six months for an almost identical act.

The same goes for a comparison between different jurisdictions.

One thing is clear: a certain amount of punishment does not simply “result” from a certain amount of injustice and guilt.

Whether an act is "worth" six months or six years does not follow from the nature of the thing, but from the social assessment, which is time-dependent and changeable.

Penalties that were partially punished for trivialities 60 years ago (e.g. simple theft) are now viewed as disproportionately harsh;

Even the sometimes brutally high penalties that were imposed in the GDR even for ridiculous acts (e.g. several years' imprisonment for stealing 2 jars of cucumbers from a dacha) did not lead to order and compliance there, nor would they be here today accepted.

In other areas, on the other hand, which were previously prosecuted rather mildly, sentences have increased significantly on average (e.g. for sexual offenses).

Such changes always reflect changes in the assessment of the respective legal interests.

If today, unlike 1960, "self-determination" is viewed as a paramount good, this almost inevitably leads to an increase in the penalties for violations relative to others.

It is correct that a considerable amount of intuition goes into the sentencing in practice.

As everyone knows, this is error-prone, highly subjective and can be manipulated.

An exemplary source of error that anyone can reproduce in an experiment is the so-called "anchor effect": A number that is the

to be thrown into an open discussion has a significant influence on the tendency of the subsequent approximations to the result.

In other words: when the public prosecutor's office puts the sentence "ten years" in the room in a case of serious robbery, practically no one thinks about whether it might not be four years.

Rather, the thoughts fixate on the "anchor" and then circle around numbers between 11 and 7. 

An unconscious adjustment to social evaluations and expectations also plays a significant role, for example when certain acts are described and viewed as "brutal", "despicable", "irresponsible", "unscrupulous" etc. by default, without even allowing differentiation.

The fact that judicial and domestic politicians with decades of experience repeatedly publicly express their alleged "bewilderment" about the fact that criminal offenses are being committed is not only a somewhat tiring exercise, but also an attempt to control legal consequences with moods: when ministers are "stunned" , particularly severe penalties will probably be appropriate.

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Title: On Punishment: Law and Security in a Democratic Society

Editor: Droemer HC

Number of pages: 384

Author: Fischer, Thomas

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Judges are required by law, professional experience and professional ethics not to trust others' intuition and their own intuition from the outset, and at any rate to review them using criteria and standards that can be "intersubjectively conveyed", that is, based on arguments that are acceptable, valid and justifiable in the social discussion.

Anyone who says today that a sentence had to be particularly high or mild because the perpetrator was a woman or the perpetrator was a foreigner has bad cards.

Such arguments are considered irrational and inadmissible.

It would also be inadmissible to accuse a defendant that he had not confessed to the crime, that he had done a lot of work for the court, that the procedure was expensive or that he was of bad character.

What can be taken into account is first of all in the general provision of Section 46 StGB: "Principles of sentencing".

I strongly recommend reading this regulation carefully (on the Internet).

For many, the wording will reveal points of view that they have not yet considered or that they have not systematically checked if they have formed an opinion on the "correct" punishment in a specific case.

However, the aspects listed there also show that a large number of aspects can have an effect on the specific punishment and that these aspects cannot all be determined "precisely", but rather must be weighed up and taken into account and assessed against each other in an open system depending on the individual case.

Taking into account the "previous life of the perpetrator" does not mean that any unimportant obstacles must lead to a reduction in punishment a long time ago, nor that one can accuse the perpetrator of his "earlier" allegedly bad character, if such personality traits are not in the concrete act have had an impact.

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Cell corridor in Berlin Moabit

Photo: imago images / Rolf Kremming

Lately there has been a tendency for the legislature to expressly emphasize aspects that are considered particularly symbolic or important in Section 46, for example, that "especially xenophobic or otherwise inhuman" motives are to be taken into account.

A further addition to "anti-Semitic" motives is currently being discussed.

I think that's symbolic nonsense.

Not because these aspects might not be important.

But because they are already contained in the law (motives, goals, intentions) and because the selection is arbitrary.

Why not "misogynist", "child hostile", "Islamophobic", "anti-democratic" etc.?

Such empty symbolism is called "legal poetry";

it is popular with keynote speakers and politicians who pretend to have big goals but don't want to change anything.

No criminal judge who is halfway knowledgeable would not consider xenophobic or anti-Semitic motives for an act when determining the sentence, simply because

the law

that one should - among all others - also consider them.

In collegiate

courts

(

lay

at the local courts,

at the regional courts,

at the higher

regional courts

) all judges - professional and lay judges - decide on the punishment with equal rights.

The so-called reporter makes a suggestion during the consultation, then the other judges express themselves in ascending order of seniority, the chairperson last.

Each vote counts equally;

In the event of disagreement, the law prescribes a specific calculation of the result (Section 196 GVG).

The judgment consultation of a criminal court is not a round table discussion in which the measure of moral indignation is piled up. 

Justification and challenge

The punishment is announced with the guilty verdict in the judgment.

To this end, the so-called "judgment formula" is read out ("The accused is sentenced to ... a prison term of ...").

The judge in charge of the main hearing then gives a brief and comprehensive explanation of the result;

this also includes the penalty.

What is said in these oral explanations plays a role in the reporting and for those involved in the proceedings, but not for the legality of the judgment.

There does not have to be a vote between the chairperson and the other judges;

It is therefore quite possible that chairpersons overshoot the mark, give inaccurate or questionable reasons, or cannot quite say how the penalty came about - for example, if they voted differently themselves.

This should of course be avoided;

actually the task is to briefly summarize the reasons that supported the decision - even if you yourself were of a completely different opinion.

Morally tinged "settlements" and personal attacks by chairmen, with which they try to add a few popular icing on the cake to justify the sentence and to crown their self-image, are wrong.

That is cheap and embarrassing, because it abuses the position of power and is also very disagreeable towards the other judges, who sit by in silence (and often suffer).

The sentencing is extremely often attacked with legal remedies - appeal or revision - very often on the grounds that the punishment is too high, too low, "unjust", not appropriate in relation to other convicts, etc. In the appeal, only the written ones If the reasons for the judgment are examined for "legal errors" (Section 337 StPO), reprimands are hardly ever successful;

Penalties are only lifted in blatant cases of mistake.

It is different if inadmissible arguments are used, elements of the offense are used twice (see Section 46 (3) StGB) or important mitigating reasons have not been seen and examined at all;

then it is canceled and referred back.

As a rule, the appellate court cannot set penalties itself, because it only has the appeals file.

In the case of the court of appeal (regional court chamber against judgments of the local court), however, a new decision is also made about the penalty.

If the Appeals Chamber always goes down a bit on punitive appeals, it "breeds" its own appeals because all the district's defense lawyers know it and can promise their clients a success;

this is therefore often avoided. 

Result

Sentencing is not pure emotion, not free from rules and not arbitrary.

It is tied to rules that can be described, followed and violated.

The punishment cannot be determined without a thorough examination of the offense and the characteristics of the offense.

Anyone who says that "legal subtleties" do not matter to him in an act of which he hears, since in his opinion the punishment must be one way or the other is grossly wrong.

It is no different than saying that to the fair outcome of a football game it doesn't matter how the game went or whether the goals were scored from offside or not.

You can do that, but it also makes you look ridiculous.

Of course, it

"matter" whether someone has committed a theft or a robbery, a rape or a minor assault.

Sentencing is the application of the law, not revenge or arbitrariness.

We should definitely stick to it.

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