Life imprisonment is unethical

On the problem of legitimizing prolonged deprivation of liberty

Heike Jung


STRUCTUREI. Problem II. Brief constitutional review III. The connection with the punitive purposes IV. Function-oriented legitimation approaches V. Summarizing remarks


I. Problem definition

If you look at the penal system of our day in a historical context, the development of the term of imprisonment has been declining for over 100 years.[1]The criminal policy discussion has long been characterized by the search for alternatives to imprisonment. This applies worldwide - despite obvious differences in the sanctioning styles in individual countries and regions. At the same time, we are still a long way from overcoming the term of imprisonment. It is more about how it can be gradually replaced.[2]

The development of sanctions is characterized by a kind of "bifurcation": Despite the increase in informal sanctions and sanctions of lesser intensity, the long term of imprisonment in particular asserts itself.[3]The answer of the federal government to the big question of the SPD parliamentary group accordingly, like the question itself, does not question the institute of imprisonment, but is limited to the statement that it is necessary "to provide alternatives to imprisonment where this is from a criminal policy point of view appears appropriate and justifiable ".[4]The Federal Government clearly stipulates the rule of preventive detention as an application of longer-term imprisonment: "The Federal Government does not consider a complete waiver of the rule of preventive detention to be justifiable ...".[5]In an earlier statement, the federal government had spoken out in favor of maintaining the life sentence.[6]

The term of imprisonment is only rarely called into question "hic et nunc", so to speak. Even critics of the penal system such as Wagner state: "Neither can criminal deviance, as some believe, be reduced by preventive measures of a social nature in such a way that the compulsory deprivation of liberty could be dispensed with in the foreseeable future, nor can legal sanctions be limited to outpatient measures alone."[7]Kerner thinks that the history of the prison sentence is the history of its "contestation et de ses réformes", only to point out a little later that it claims a "place distincte".[8]

There is no lack of fundamental criticism of the deprivation of liberty and thus of the prison institution, and not only from an abolitionist point of view.[9]In any case, the justification of the imprisonment is neither morally nor legally so evident that further thought was unnecessary. Considerations about the legitimacy of long deprivation of liberty are, like all analyzes related to sanctions, characterized by the fact that the normative level cannot be clearly separated from the level of criminal policy / criminological and criminal law philosophy. In particular, the meta-level of constitutional law and human rights does not provide any pre-cut, once and for all fixed assessment standards. Rather, these must first be determined in an analysis that includes certain basic poenological assumptions. This amounts to a kind of "circular" argumentation, which also involves the risk of argumentative idleness.

II. Brief constitutional inventory

The constitutional and human rights inventory is - in relation to individual forms of sanctions - not overly productive. The list of relevant constitutional norms is limited. First and foremost, the principle of human dignity (Art. 1 GG), the fundamental rights of freedom (Art. 2 GG) and the rule of law (Art. 20 GG) come into consideration in various forms. In addition, Art. 3 ECHR stipulates an express and specific requirement for the design of the penalty system. It prohibits torture and inhuman and degrading treatment or punishment. The question of the compatibility of the custodial sentence with Art. 3 ECHR has not yet been the subject of a legal dispute before the European Court of Human Rights. The outcome of such proceedings is not difficult to predict: the prison sentence as such is not contrary to the Convention. Various constitutional norms indicate that the constitution presupposes the possibility of deprivation of liberty.[10]the Supreme Court[11]has declared recourse to imprisonment and deprivation of liberty in particularly important cases of the protection of the general public as permissible. In its decision on the constitutionality of life imprisonment, it expressly established a constitutional correlation between the harshest punishment existing in the respective penal system and the protection of particularly important legal interests: "A severe punishment such as life imprisonment is particularly suitable, in the consciousness of the population to establish that human life is a particularly valuable and irreplaceable legal asset that deserves special protection and general respect and recognition. "[12] If, according to this, even life imprisonment - albeit not without restrictions - is considered to be constitutional, the ordering, imposition and execution of imprisonment are not at the discretion of the legislature and the administration of criminal justice. In detail, the following statements can be made:

(1) The case law of the Federal Constitutional Court is based on the idea that deprivation of liberty is of the ultima ratio character. Walter attributes this guiding principle to the prohibition of excess, the subsidiarity principle and the welfare state principle.[13]

(2) A penalty of indefinite duration is difficult to reconcile with the Basic Law, namely the principle of certainty of Art. 103 II GG. The legislature has taken this into account with the abolition of the indefinite youth penalty.[14]This does not rule out a "flexibilization" of the duration of the sentence at the implementation level, i.e. a system of conditional release. The European Court of Human Rights tolerated convictions for an indefinite period of time, but required a system of judicial review of the continuation of the enforcement, which sets standards for the issue of parole in general.[15]

(3) Especially for the enforcement of measures, one will be able to infer an increased "freedom-friendly" examination obligation from the principle of proportionality. According to this, the conditions for the proportionality of the deprivation of liberty become stricter the longer the placement in a psychiatric hospital lasts.[16]The principle of proportionality also has an effect in the law of measures when specifying the risk prediction, which in any case cannot be handled without a "materiality threshold". The question of whether there is a constitutional relationship between the punishment in question and the maximum duration of the placement appears to me to be open, which basically refers to the possibility of an independent, i.e. non-criminal justification for placement.[17]

(4) The principle of human dignity is of increasing importance for the execution of detention. Especially for life imprisonment, the Federal Constitutional Court derived the principle from this, according to which a person must not be permanently stripped of freedom without the chance of ever enjoying freedom again.[18] Wagner puts this in a more general context: "Long-term effective decisions, such as the sentencing to a higher prison sentence, are fundamentally in need of correction. The quality of a decision is measured not only according to the conditions in which it was made, but also according to its value at any later point in time. This now depends on the development of the person affected by it, on his relationship to the environment, not least on the assessment of the decision in retrospect, etc. Not only does the person age, but also the decision made at the time of conviction if it is not changed in time becomes."[19]

  • Access to people through punishment is subject to limits that must not be exceeded, even in the interests of an actual or alleged general prevention. Deforming personality changes caused by the punishment are unacceptable.[20] In the Tyrer case, the ECHR found that general prevention is not a license for this or that form of punishment[21]and thus marked a kind of civilizational pain threshold ".

(6) The legitimation of imprisonment cannot be viewed in isolation from the regime to which the persons concerned are subject. Here the questions of the prisoner's legal status and living conditions come to the fore, insofar as the deprivation of liberty - if at all - cannot be legitimized in every form. Rather, one will have to judge its implementation not least by whether the requirements of the constitution, namely the protection of human dignity[22], Is taken into account.

III. The link with the punitive purposes

As a rule, specific forms of punishment are expressly linked to the purposes of the punishment only if the aim is to justify the particular affinity of a form of punishment with a specific purpose. The discussion of the purpose of the punishment should not be carried out in full here. In any case, it is only of interest here in its specific focus on the institute of longer imprisonment.

It quickly becomes clear that special preventive considerations aimed at rehabilitation tend to recede in the case of longer prison sentences. This is especially, but not limited to, life imprisonment. Schultz expressed this with particular clarity in the preliminary draft for the reform of Swiss criminal law in his vote against life imprisonment: "What speaks against a life imprisonment is that after a few years of imprisonment, as a rule, reintegration and supervision seem to make little sense and the repressive moment comes more and more to the fore, in order to ultimately become decisive. "[23]This view of the special preventive justification line is - from a contemporary point of view - more recent: 100 years ago the Petersburg Congress still expressed itself positively on the rehabilitation effect of the long prison sentence: "Toute peine étant destinée à la fois à punir le coupable, à le mettre dans l ' impossibilité de nuire et à lui thunder les moyens de se réhabiliter et les peines de longue durée permettant, plus que les autres d'espéer d'amendement du condamné ... ".[24] A special preventive justification can only be found if one also includes the protection of the general public from further criminal offenses through the safe accommodation of the offender.[25]This negative side of individual prevention, however, only represents a disguised legitimation of the security function, with which we actually go beyond the normative level.

The above-cited expressions of the Federal Constitutional Court point in the direction of the criminal purpose of general prevention. This can be addressed in both forms, in its negative insofar as the execution of a long-term imprisonment could have a special deterrent effect. With this we are of course referred to the broad field of general preventive impact research, which remains unclear with regard to the effect of individual sanctions or sanction modalities.[26]In any case, there is much to suggest that, under general preventive aspects, sanctioning and the type of sanction are of secondary importance[27]and only to the extent that the consistency or coherence of the sanctions should be preserved.

The Federal Constitutional Court is more aimed at the positive aspect of general prevention, the so-called integration prevention. By imposing longer-term imprisonment sentences as the harshest permissible forms of punishment, the special status of the legal interest is documented and thus the value structure for the protection of this legal interest is stabilized. While protection of the general public is rather unspecific in the context of the justification of imprisonment, the presumed value-stabilizing role comes to the fore when dealing with the constitutionality of life imprisonment.[28]It could also be called retaliation if the reference to the consolidation of the particularly high rank of the legal interest did not bring a preventive component into play, which can be seamlessly integrated into the style of preventive integration approaches. This is entirely in line with earlier statements by the Federal Court of Justice on the importance of preventive criminal purposes.[29]However, it is precisely in connection with long-term imprisonment that the breadth of content of positive general prevention becomes clear, which easily incorporates the aspect of retribution - even if it is understood explicitly in relation to society[30] and thus able to trigger comparable repressive associations.

IV. Function-oriented legitimation approaches

Burgstaller considers sanctions with imprisonment to be indispensable for the foreseeable future. His reasoning may serve as a guideline for the subsequent diversification of possible functions: "You need it primarily for serious crimes and dangerous, especially recidivist offenders, and secondarily to have the necessary pressure in the background for informal and formal sanctions without deprivation of liberty.[31] With this statement, basically three functions are addressed:

(1) the backup function
(2) the symbolic function and
(3) the "backdrop" and substitute function.

(1) The security function has always been intrinsic to imprisonment. Faugeron / Le Boulaire certainly rightly claim that, despite all efforts to create positive meaning, this aspect explains the rise of the prison and its function even today: la prison est davantage uti1isée comme un lieu de mise à 1'écart que comme le lieu d 'une punition, compris sa fonction péna1e, eile est avant tout un lieu de sûreté. "[32]For Böhm, too, in his analysis of the effects of the imprisonment, the only thing that remains unchallenged is that "the execution of the imprisonment grants a certain, admittedly temporary, protection from criminal offenses."[33]This paramount importance of the security argument is also underlined by the fact that the judicial practice - although not provided for in the standard program - gives it a particularly high priority as a reason for sentencing.[34]The bridging to the discussion of the purpose of punishment, which is given by the negative special prevention, experiences a contemporary re-description in the concept of "incapacitation", which - based on the US-American discussion[35]- has found a certain response in Europe too. It particularly attracts the offenders who have recidivists several times. It is - regardless of ethical and constitutional objections - afflicted with serious forecasting problems and is based on a career model that is subject to objections.[36]

In some cases, the security function is also or even preferably associated with a "medical model" and thus with a measure orientation. In any case, a sliding system of complementary and complementary reactions conjures up the danger of an airtight sealed system from which there is no escape for the perpetrator.[37]If you can bargain for 17 years imprisonment - pre-trial detention, criminal detention and placement time added up - for the theft of a fur coat,[38]is something wrong with the system.

(2) The symbolic function of punishment is increasingly being discussed again. Garland, for example, has put together elements from Durkheim, Elias and Geertz to form a theory of punishment in which "penal symbolism" and "signifying practices" play a decisive role, "linking the business of punishment into questions of politics, morality and social order" and so on "One of the most important instances of this symbolism of physical appearance, at least in modern penal systems, is contained in the external imagery of the prison, and in the iconography of institutional architecture".[39]This symbolic justification of the prison as an element of a system of punishment, which in turn is based on the development and confirmation of the categories of social order, corresponds to a basic pattern that has always applied to punishment as a reaction emanating from the community. It is precisely the modern reparation debate, with its intellectual recourse to early medieval fines, that clearly emphasized the role of the state and the direction it gave to the development of the sanction system. Even today, prison is the form of reaction in which the state's regulatory power is most strongly reflected. Smaller, homogeneous forms of society, as confirmed by legal anthropology, can largely do without prison. In this respect, the prison presents itself as an expression of the penal system of a complex, state-organized society.

At the same time, the prison and its walls symbolize security.Significantly, the primary schema attributes of prisons are "walls" and "bars" or "barred windows".[40] The point of view of fear of crime may also resonate, which is most likely to be absorbed by a wall that is considered to be protection against (diffuse) danger. The wall also has a function of inclusion or exclusion. The prison gives the impression that the crime is under control.[41] Such associations are almost inevitable because the prison continues to shape the habitual basic pattern of the punishment system.

(3) The "backdrop" function is linked to the symbolic function. In its symbolic component it says that we can only "afford" a relatively broad repertoire of outpatient and socially constructive forms of reaction because the punitive desire is "reified" in prison and, as it were, absorbed by the prison sentence. The use of language is significant in this respect. Because we are still talking about "alternatives" to imprisonment, i.e. the system is still geared towards imprisonment as the "real" sanction. This does not mean the fact that imprisonment remains in the foreground in the general view. Rather, it is about the assumption - the usage of the language is indicative - that all alternatives to imprisonment are based on their existence. Behind this is the thesis that without this means of enforcement, which gives the necessary force, the public's trust in the legal system would wane.[42]On the positive side: the existence of imprisonment creates space for other forms of sanctions, which can develop so far within this framework that imprisonment as a form of sanction is pushed back further and further and ultimately "dried up" completely. However, nothing can be deduced from this for the question of the duration of the prison sentence and its execution.

A substitute function of the imprisonment in relation to the death penalty could come into play here. In a legal system that has abolished the death penalty, such an approach appears obsolete. Of course, two aspects should induce us not to completely ignore them: On the one hand, the death penalty still has - at least subliminally - a certain function in everyday criminal policy discussions that needs to be neutralized. On the other hand, the death penalty has by no means been overcome worldwide, so that the "substitute function" - at least when viewed across the system - has not yet been fulfilled.

V. Summarizing Notes

1. The approaches to legitimizing imprisonment relate to the status quo. From historical developments it cannot be extrapolated with certainty that and when the prison sentence will be overcome. However, it confirms how much such arguments are tied to the respective penal sensitivity of the epoch, and are therefore time-bound. If (criminal) legal instruments are accepted as part of the system of social control, this is also obvious, since forms of reaction can no longer be used sensibly at the latest when they threaten to destabilize the control system through their counterproductivity. When this is the case, in connection with Elias, depends primarily on the development of the so-called "penal restraints". If a certain form of sanction can no longer be tolerated, the control burden is taken over by another. Such development opportunities are also assumed in constitutional case law.[43]These possibilities for development can also relate to the shifting of possibilities for justification. Forms of sanctions in which no "positive sense of purpose" can be seen for the person concerned can no longer be maintained in this form for long.

2. When it comes to the question of legitimacy, a clear distinction is usually not made between constitutional, criminal purpose-oriented and functional approaches. This has to do with the fact that - this applies to the sanction system as a whole - it is difficult to distinguish between constitutional, criminal-political and penological-criminological perspectives.[44]In this respect, for example, weaknesses in justification oriented towards the purpose of a criminal offense also have an impact on the level of constitutional legitimacy.[45]


3. In relation to the criminal justice systems of the western world, the security function of the imprisonment is in the foreground. It takes actual and perceived fears of the "dangerous offender" into account. Their excess appears typical for society in complex industrialized countries. The smaller, more manageable and homogeneous the control unit, the sooner it is possible to dispense with imprisonment. In this respect, (custodial) punishment may be inherent in a state-organized system of social control. Against this background, the deprivation of liberty is no longer necessary in such a system if the security fears are (can) processed differently. Because it has not been agreed that imprisonment will be used as an instrument to stabilize the order of values. For this purpose, less intervention-intensive stabilizers or - depending on the viewing angle - those that have taken on the role of imprisonment due to a change in criminal sensitivity are sufficient.

4. Worldwide, a campaign against long imprisonment will only be successful if it succeeds in making the death penalty disappear as a form of sanction and an argument for criminal policy.[46]


F u ß n o t e n
[1] See the statistical compilation by Kaiser, Kriminologie. An introduction to the basics, 9th edition, Müller, Heidelberg 1993, p. 586.

[2] This is the title of the article by Lüderssen, Gradual replacement of the custodial sentence, in: Hassemer (Hrsg.), Strafrechtsppolitik, Lang, Frankfurt 1987, pp. 83-102.

[3] For the first time Bottoms, Reflections on the Renaissance of Dangerousness, The Howard Journal of Penology and Crime Prevention 1977, pp. 70, 88 f.

[4] BT-Dr 12/3718, p. 9. Concerning the contours of a possible further development of the alternatives, Schöch, Are changes and additions to the criminal penalties without deprivation of liberty recommended? , Munich 1992.

[5] BT-Dr 12/3718, p. 12.

[6] BT-Dr 10/5828, p. 2.

[7] Wagner, Das absurde System, 2nd edition, Müller, Heidelberg 1985, p. 149. Similar to Badinter in the magazine of the Frankfurter Allgemeine Zeitung of November 19, 1993, p. 63: "A penal system without prison is a utopia Ask a question and discuss this idea, just - it won't become a reality any time soon. "

[8] Kerner, Les sanctions pénales classiques et leur alternations dans la politique criminelle, in: Annales Internationales de Criminologie 1987, pp. 91, 92, 96.

[9] On the abolitionist perspective Mathiesen, Prison Logik, AJZ Druck und Verlag, Bielefeld 1989; ders. Prison on Trial, Sage, London 1990.

[10] Cf. also Rössner, Must be custodial ?, in: Sievering (ed.), Treatment Execution - Evolutionary Intermediate Stage or Historical Dead End ?, Arnoldshainer Texts, Volume 47, Haag and Herchen Verlag, Frankfurt 1987, pp. 116, 117 f.

[11] General on the "trigger function" of Federal Constitutional Court decisions for the sanction system Tiedemann, Constitutional Law and Criminal Law, Müller, Heidelberg 1991, p. 30.

[12] BVerfGE 45, 187, 256 f.

[13] Walter, Strafvollzug, Boorberg, Stuttgart 1991, p. 50 f.

[14] Student Springorum, Law and Law in Juvenile Justice, in: Festschrift für Arthur Kaufmann, Müller, Heidelberg 1993, pp. 654, 652, of course, draws attention to the fact that the practice here has long been in line with the law - probably in recognition of the dubious aspects of juvenile justice the allegiance had failed, and the legislature has only followed suit. This does not change the fact that it is a "rule of law-friendly" result.

[15] Thynne, Wilson and Gunnell, Series A No. 190.

[16] BVerfGE 70, 297.

[17] An attempt to do this is made by Stratenwerth, On the Justification of Freedom Restricting Safeguarding Measures, Swiss Journal for Criminal Law 1988, 105; On the other hand, see Mufloz-Conde, Proposal of a new law of measures, in: Hassemer (ed.), Strafrechtsppolitik, Frankfurt 1987, 117, 119. General on the problem of Kaiser measures, Are the criminal law measures in crisis ?, Müller, Heidelberg 1990.

[18] BVerfGE 45, 187, 223. From a human rights perspective, the proposal currently being discussed in France to reintroduce the "guaranteed" life imprisonment for certain homicides appears unacceptable; see Le Monde of November 4, 1993, p. 1.

[19] Wagner (fn. 7), p. 158 f.

[20] BVerfGE 45, 187, 228 f .; Rössner (fn. 10), p. 137.

[21] Tyrer, Series A No. 26 31: "As regards their belief that judicial corporal punishment deters criminals, it must be pointed out that a punishment does not lose its degrading character just because it is believed to be, or actually is an effective deterrent or aid to crime control ".

[22] Recently, Müller-Dietz, Human Dignity and Prison, de Gruyter, Berlin 1994.

[23] Schultz, report and preliminary draft for the revision of the general part and the third book "Introduction and Application of the Law" of the Swiss Criminal Code, Bern 1987, p. 78.

[24] Quoted from Tsitsoura, La politique criminelle de la fin du XIX siècle à la fin du XX siècle, in: Van der Vorst / Mary (eds.), Cent ans de Criminologie à l'ULB, Bruylant, Brussels 1990, p. 107 , 114.

[25] See Müller-Dietz, How is the preventive effect of life imprisonment to be assessed in murder ?, in: Jescheck / Triffterer (ed.), Is the life imprisonment unconstitutional ?, Nomos, Baden-Baden 1978, p. 91.

[26] In summary, instead of many H.J. Albrecht, General Prevention, in: Kaiser / Kerner / Sack / Schellhoss (ed.), Small Criminological Dictionary, 3rd edition, Müller, Heidelberg 1993, p. 157.

[27] On the principle of the interchangeability of sanctions, see Streng, Strafrechtliche Sanktionen, Kohlhammer, Stuttgart 1992, p. 116 f.

[28] BVerfGE 45, 187, 256 f.

[29] BGHSt 24, 40, 42 the punishment does not have the task of exercising debt compensation for its own sake, but is only justified if it also proves to be a necessary means of fulfilling the preventive protective tasks of criminal law. "

[30] Similar to Burgstaller, criminal policy after 100 years of IKV / AIDP. Attempt to take stock, ZStW 1990, 637, 644.

[31] Burgstaller (fn. 30), p. 654.

[32] Faugeron / Le Boulaire, Prisons, peines de prison et ordre public, Revue française de sociologie 1992, p. 3, 29.

[33] Böhm, Strafvollzug, 2nd edition, Metzner, Frankfurt 1986, p. 38.

[34] Strict, Sentencing and Relative Justice: An Inquiry into Legal, Psychological, and Sociological Aspects of Unequal Sentencing, Decker, Heidelberg 1984, p. 232.

[35] A discussion that has also been reflected in the most recent US federal legislative proposals to mandate life imprisonment ("three strikes") in cases of certain offenses after the second recidivism; in addition Le Monde v. 5.4.1994, September 5.

[36] Kerner, La neutralization, est-elle un objectif acceptable ?, in: Tsitsoura (ed.), Les objectifs de la sanction pénale, Bruylant, Brussels 1988, pp. 101, 112; also Faugeron / Le Boulaire, Quelques remarques a propos de la récidive, Kriminologisches Bulletin de Criminologie 1993, pp. 12, 24 f.

[37] Schoolchildren's Springorum, Criminal Law Science 1889 and 1989. German contribution, in: Groenhuijsen / van der Landen (ed.), De Moderne Richting in het Strafrecht, Gouda Quint, Arnhem 1990, pp. 135, 141.

[38] So apparently in the case on which BVerfGE 70, 297 is based.

[39] Garland, Punishment and Modern Society, Clarendon Press, Oxford 1990, pp. 252 ff.

[40] This is the result of surveys carried out as part of a seminar; see Esch / Jung / Kroeber-Riel, The communicative effects of prison architecture, in: Festschrift für Jahr, 1993, pp. 47, 67.

[41] Also Walter (fn. 13), p. 110.

[42] Böhm (fn. 33), p. 46.

[43] In connection with the question of the constitutionality of life imprisonment, see BVerfGE 45, 187, 227.

[44] Likewise Müller-Dietz, Experiences with the Prison Act, in: Bitburger Talks, Yearbook 1986/2, Beck, Munich 1988, pp. 27, 70.

[45] Also Evangelische Akademie Arnoldshain (ed.), Theses on the Abolition of Imprisonment, 1989, p. 18 f.

[46] How far we are still from this is shown by the investigation by Hood, The Death Penalty, Clarendon Press, Oxford 1989.