My research project examines how, beginning in the late nineteenth century, a new generation of German legal reformers gradually transformed the criminal justice system. This transformation manifested itself in two basic processes of change: first, a shift in emphasis from moral retribution to the protection of society as the primary purpose of criminal justice; second, the dissolution of the nineteenth-century system of fixed and uniform punishments in favor of a system of individualized preventive measures that incorporated non-penal forms of state intervention such as education and medical treatment. My project places the origins of this reform movement in the context of the emergence of the "scientific" study of crime that became known as criminology,1 fundamental changes in German liberalism, and the rise of an interventionist welfare state. After showing that the political implications of the reform proposals were highly ambivalent from the outset, my study examines the development of German penal reform under three different political regimes, from Imperial Germany through the Weimar Republic to the end of the Nazi period.
Imperial Germany's criminal justice system was a compromise based on the principles of retribution, deterrence, and rehabilitation. Starting in the 1880s, this criminal justice system came under attack from a new generation of legal reformers, who pointed to high recidivism rates as evidence of the system's ineffectiveness. Dismissing the traditional moral foundation of criminal justice, these reformers argued that the purpose of punishment should not consist in inflicting just retribution but in protecting society from future crimes. They therefore made the radical proposal that a criminal's punishment should not depend on the gravity of the offense committed (the principle of deterrence) or on the person's individual degree of guilt (the principle of retribution), but on the future danger that the particular offender posed to society. Instead of serving a fixed prison sentence, each offender was to be subject to individualized and open-ended preventive measures designed to prevent him or her from committing future offenses. Depending on the type of criminal, these measures could take different forms, including a suspended sentence, rehabilitation, indefinite detention, medical treatment or correctional education.
My research project has three major themes: the erosion of individual legal responsibility, the transformation of the criminal sanction, and the political ambivalence of the penal reform proposals.
The Problem of Individual Legal Responsibility
Criminological research on the causes of criminal behavior, which the penal reformers championed, undermined the notion of legal responsibility. For if a person's criminal actions were, to a significant extent, determined by their heredity or environment, how could one hold the offender morally or legally responsible? But if criminal offenders were not responsible, what distinguished them from insane persons? In short, the reformers found themselves in a dilemma: to make the criminal sanction effective, they had to understand the causes of crime; but all of the "scientific" explanations of crime undermined the notion of free will and thus the very basis of the criminal justice system. My project examines how the reformers and their critics confronted this central dilemma and what compromises they developed in order to reconcile the determinist implications of "scientific" etiologies of crime with the notion of individual legal responsibility.
The Criminal Sanction and Non-Penal Forms of State Intervention
Having abandoned the retributive purpose of punishment in favor of a purely preventive approach, the penal reformers sought to empty punishment of its "punitive" content. As a result, the penal sanction began to become dissolved into a spectrum of individualized measures that became increasingly similar to non-penal modes of state intervention, such as education, medical treatment, and police detention in a workhouse. Because of the increasing connection of penal and non-penal forms of state intervention in what Michel Foucault has called a "carceral continuum,"2 my project pays particular attention to the intersection of penal reform with the emergence of an interventionist welfare state, eugenics, and other reform movements such as the child welfare movement.
The Political Ambivalence of the Penal Reform Proposals
The reform movement's abandonment of a retributivist system of fixed and uniform punishments in favor of individualized preventive measures had profoundly ambivalent implications. On the one hand, the primacy given to individualized treatment was an attempt to liberate criminal justice from the schematism of deterrence and from the harshness of retribution. By turning the penal sanction into a preventive rather than a punitive measure the reformers clearly paved the way for a more humane criminal justice system. On the other hand, however, the new approach was also fraught with grave dangers. For if punishments were no longer limited by the proportionality principle of retributive justice or by a system of fixed punishments, the individual offender would be left defenseless against the potentially limitless protective demands of society.
Since the major figures of the penal reform movement during the Imperial and Weimar periods were liberals, the project will address the question of how the reform movement was connected to fundamental changes in German liberalism. On the most general level, it seems clear that the penal reformers' call for the indefinite detention of habitual criminals reflected the Janus-faced nature of the modern interventionist welfare state and what Detlev Peukert has called the "rifts and danger zones" of modernity.3
The ambivalent nature of the reform proposals explains why they met with critical responses from opposite directions. Whereas some critics warned that the reformist system of individualized and indefinite preventive measures would establish a police state without any protections for individual liberty, others charged that the reformers were a group of weak-kneed humanitarians whose focus on prevention rather than retribution sapped criminal justice of its moral meaning and deterrent effect.
Although these criticisms forced the reformers to make compromises with the system of fixed punishments and the principle of retributive justice, many reformist proposals were accepted by the mainstream of the German legal profession, incorporated into the draft codes elaborated by official penal reform commissions, and in some cases implemented through partial judicial reforms. Finally, the ambivalence of the reform proposals explains why the reformist project remained both attractive and controversial for such different political constituencies as Weimar democrats, Nazis, and postwar Germans.
Synopsis
1. Criminal Justice in Imperial Germany
The first chapter of the book in progress discusses Imperial Germany's criminal justice system as a compromise between three potentially contradictory penal strategies: general deterrence, retribution, and rehabilitation. The German penal code prescribed a fixed range of punishments for each offense in accordance with the liberal penal philosophy of general deterrence. The courts calibrated sentences to represent the "just measure of pain" corresponding to the offender's individual degree of guilt in accordance with the principle of retributive justice. The prison administrators charged with administering these sentences, finally, often pursued the very different goal of rehabilitating the offenders. The remaining sections of this chapter provide brief background on the emergence of criminology as a scientific field and on society, politics, and crime patterns in Imperial Germany.
2. From Retributive Justice to Social Defense
The second chapter examines why and how all three strands of the nineteenth-century criminal justice system - retribution, general deterrence, and rehabilitation - came under attack from a new generation of penal reformers under the leadership of Franz von Liszt in the early 1880s. At the most fundamental level, Liszt argued that the purpose of punishment was not to inflict just retribution but to protect society from future crime. Moreover, while the current system sought to protect society primarily through general deterrence, the reformers insisted that this purpose was best achieved by preventing each individual offender from committing future crimes. They therefore proposed that a criminal's punishment no longer should depend on the gravity of the offense but on the future danger the offender posed to society. Hence, instead of serving a fixed prison sentence, each offender ought to be subject to individualized and indeterminate preventive measures designed to prevent him or her from committing future offenses. Although these preventive measures could include rehabilitation, Liszt and his fellow reformers were quite pessimistic about the possibility of rehabilitating repeat offenders and focused attention on the large number of "incorrigible habitual criminals" who ought to remain imprisoned for indefinite periods. The chapter's last section examines the emergence of an organized penal reform movement in the shape of the Internationale Kriminalistische Vereinigung and its German section.
3. The Debates About Penal Reform: Conflict and Compromise
The third chapter examines the debate between the penal reformers and the "classical" school of criminal law, which defended the retributivist status quo. My analysis of the debate focuses on two main issues: the retributivists' charge that the determinism inherent in the reformers' "scientific" approach to crime as a product of biological and environmental factors undermined the notion of legal responsibility; and the retributivists' charge that the reformers' call for indeterminate preventive measures posed a grave threat to civil liberty. Regarding the first issue, the reformers wavered between two positions. Initially, they frankly acknowledged that their scientific approach to crime had rendered the notion of legal responsibility untenable, but argued that this notion had become dispensable because penal sanctions were to be based on individual "dangerousness." Realizing that this position was too radical, however, they subsequently made various attempts to redefine individual legal responsibility in ways that would make it compatible with their determinist view of crime.
While the problem of legal responsibility remained fundamentally unresolved, on the issue of indefinite punishment and the threat it posed to civil liberty a compromise was reached. For although the classical school insisted that all punishments must be fixed in advance, they shared the reformers' concern about incorrigible habitual criminals and therefore came to accept the reformist demand for the indefinite detention of such criminals. The resulting compromise proposal of formally separating an habitual offender's detention into a fixed term of "punishment" and a subsequent indefinite term of "preventive" detention revealed that the retributivist mainstream was beginning to yield to the reformers' call for a highly interventionist strategy of crime prevention. By 1902 both the government and the Association of German Jurists (Deutscher Juristentag) called for the revision of the German penal code along reformist lines.
4. Individualizing Punishment
The reformers' demand that the penal sanction serve the purpose of preventing the individual offender from offending again in the future led them to call for the replacement of the standard fixed prison sentence with a variety of alternative sanctions tailored to the individual offender. What is more, even though the reformers still used the term punishment, they proposed to strip the penal sanction of its punitive content and to dissolve it into a spectrum of individualized preventive measures, many of which were similar to non-penal measures such as education (for juvenile delinquents), medical treatment (for abnormal offenders) and administrative detention in a workhouse (for incorrigible habitual criminals). This chapter examines the debates about alternative sanctions for four different categories of offenders - occasional, abnormal, and habitual offenders as well as juvenile delinquents - among the penal reformers and in the German legal profession at large, as well as the introduction of such alternative sanctions into judicial practice through various partial reforms.
5. Reforming the Penal Code, 1906-1932
The first two sections of this chapter trace how reformist ideas were incorporated into the draft penal codes of the two prewar reform commissions convening between 1906 and 1914 and into the two postwar draft codes of 1925 and 1927. Although these draft codes were still based on the retributivist principle that punishments ought to be determined by the criminal's offense, a number of proposed innovations represented a major step toward the reformist vision of criminal justice as a system of individualized preventive measures designed to protect society. These innovations included the introduction of suspended sentences for first-time offenders, the indefinite detention of multiple recidivists, correctional education (instead of punishment) for juvenile delinquents, and the medical internment of mentally defective offenders. When the 1927 draft code was introduced as a bill in the Reichstag that same year, penal reform efforts finally reached the parliamentary stage. The chapter's third section discusses the ensuing political deliberations between 1927 and 1932, the attitudes of the different political parties toward penal reform, and the ultimate failure of penal reform due to the gradual dissolution of the Weimar Republic. The final section examines the attacks of right-wing and pro-Nazi jurists against the penal reform movement in the last years of the republic.
6. Penal Reform Under the Nazi Regime
The final chapter examines the complex fate of penal reform in the Nazi era. Whereas Nazi jurists attacked the penal reformers as humanitarian liberals who were soft on crime, both the reformers' concern with effective crime prevention and the biological-medical approaches to crime underlying the penal reform agenda appealed to the Nazis. The chapter's first section examines early Nazi penal legislation, especially the Law Against Habitual Criminals of November 1933, which implemented the indefinite detention of habitual criminals that the reformers had long called for. The following section looks at the often conflicting efforts of pro-Nazi jurists to construct coherent "Nazi visions" of penal policy, and the relationships of these blueprints to the longstanding conflict between retributivists and penal reformers. After tracing how these efforts played out in the work of the official penal reform commission, whose 1936 draft code ultimately failed to become law, the last section examines the radicalization of penal policy in the later years of the Nazi regime, with particular attention to the wartime preparations for a "Community Aliens Law" (Gemeinschaftsfremdengesetz) that reflected a thoroughly biologized vision of penal policy.