Informational tour ‘Capital Punishment’ | 2011

Bringing About Legal Peace With Legal Means – Criterion for a Functioning Civil Society

by Odila Triebel

The rule of law and a well developed civil society are the prerequisites for bringing about legal peace with legal means. Conversely, a functioning State and the rule of law and a democratic civil society require an undivided human rights practice. This inner logic became abundantly clear during the visitors' programme on "Capital Punishment".

It made alot of sense, therefore, to begin the program with a visit to the dome on top of the Reichstag, the House of Parliament, which offers every citizen and every visitor a panoramic view over the seat of government, as well as a direct view of the legislators. Even for a modern state it can't always be taken for granted that human rights are the overriding principle and that no other legitimation of the State is accepted; a numer of countries, even in Europe, have abolished the death penalty and yet retain it in times of war. Some countries reject the idea of a principle connection between capital punishment and human rights, yet other countries that interpret human rights as natural rights to be defended by the State find the death penalty problematic only in its use as an instrument of criminal law, pointing to the circumstances of criminal proceedings (fair trial), prison conditions and the execution itself. This position, however, leaves the door open for justifications. If human rights are not understood primarily as natural rights to be defended by the State, but are seen as the yardstick by which we measure the functioning of civil society that makes up the State, then there is no argument to be had in defense of the death penalty. Delegating punishment according to the rule of law, making reintegration possible and allowing for the possibility of retrials and acquittals will then become constituent elements of civil society itself.

As documented in the Bendlerblock exhibition and as presented in a talk by the former Chief Federal Prosecutor in Berlin with Special Mandate to Prosecute GDR Gov.Crimes und the Miscarriage of Justice, German history of the twentieth century contains many deplorable examples of the abusive use made of the death penalty and its uncontrollable application in criminal prosecution and how this connects to the undemocratic concept of the State at the time. Participants started a lively discussion on the role of Stauffenberg and how he is portrayed in the exhibition of the German Resistance Memorial Site. It became evident how very difficult it is to convey the mindset of a military officer who feels bound by the military oath and his fear of committing treason in a context of total injustice and criminality.

That is Germany's history. Comparisons cannot be made with other countries. But it does explain very impressively the short and simple wording of Article 102 of the German Constitution that reads: "The death penalty has been abolished" and why this Article was written, not least, to strengthen the development of a democratic civil society in Germany.

The results of the prison reform program were impressively visible during the visit at the Tegel Correctional Facility: Inmates produce a newspaper that is uncensored and subject only to the rules dictated by media legislation. Up to 20% of correctional officers are women. Weapons are not kept on the premises. Even the deputy director, a woman, moves about without special protection. Uniforms are hardly to be seen, prison garb is optional for inmates and every block has a telephone in the corridor that connects to the outside. Self‐mutilations happen, attempted suicides are rare.

Every prosecuted criminal in Germany must be given the prospect of a life in freedom – thus decided the Federal Constitutional Court. The prospect of going free plays an important part in minimizing violence in the prison environment. Risks are not downplayed in Germany, some individuals have to be locked away in order to protect the public. The legal instrument used is called "preventive detention" which makes for the relatively lenient sentencing in Germany compared to other countries. Here the German legal system stays within the logic of the system: The potential threat that a perpetrator poses to society is not an offence and may not be measured in terms of punishment. That is why the length of prison sentences is determined by the seriousness of the crime and not by the perpetrator's potential threat to society. The participants still had a number of unanswered questions on this study tour. For example, the english translation of the German term "Sicherungsverwahrung" is "preventive detention" and it conjures up negative associations of political opponents being detained preventively....

Many of the public debates surrounding the prison system must be underpinned by factual, scientific studies as carried out by the Max‐Planck‐Institute for Foreign and International Criminal Law in Freiburg: Recidivism for white colar crime is a multiple of that for homicide. When citizens call for more security, it needs to be checked. German society has never been more secure than now and yet demands for more security are growing. Possibly the mass media have a part to play in people's perception of security. Other studies conducted by the MPI show that the death penalty is not a deterrent; it is impossible to forecast threat potential based on strictly scientific criteria; false verdicts can happen.

Repeatedly participants asked about victims' wishes for revenge and retribution in Germany. In many retaining countries such wishes are used as an argument for the death penalty. Every speaker on the program stated that victims in Germany are not clamoring for retribution. They maintained that every survey showed that victims wanted above all a just prosecution and protection against renewed crime. How is that possible? Germans are not different from anybody else. A study by the MPI shows that people's willingness to delegate punishment to the courts and to accept the reintegration of perpetrators is a function of their confidence in the security of society's institutions and acceptance of the legitimacy of the body politic. This points once again to the close link between the criminal justice system and how its decisions play out in a democratic civil society. Capital punishment is highly problematic not only as a criminal justice tool. Much is at risk when trust in the security of society and its institutions has eroded. Feeling safe and secure in society enables legal peace. Victims and their plight won't have to play a part in order for justice to be served and that brings peace to society. Civil society itself is the medium for human rights.

Participants took lots of reading material for the support of campaigns in their home countries back to Uganda, India, USA, Japan and China. Throughout the study tour they were impressed by the criminal justice system (see Feedback‐Essay on this homepage) and by the views pronounced by speakers. One participant, however, commented that this high standard also bore some risks, namely the risk of neglecting and not watching out enough for one's own society, as well as not being aware enough of the situation in other countries.