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May 1, 2008

Horrid case in Austria creates buzz over sentencing in Europe

The AP has this new piece, headlined "Austria case revives European debate on light prison terms," which highlights how one gruesome case has raised new questions about European sentencing attitudes and outcomes.  Here are excerpts:

Police say Josef Fritzl left a lot of human wreckage in his wake: the daughter he imprisoned and raped for 24 years, the seven children he fathered with her and the wife whose life he shattered.  Yet, for an atrocity that has stunned the world, he may wind up serving just 15 years in prison if charged, tried and convicted.

Practically speaking, that may translate into a life sentence for Fritzl, 73. But his case has revived a debate over Europe's lenient penal system — and whether harsher, U.S.-style sentencing guidelines might help deter such heinous crimes.

"Fifteen years for destroying human lives is unacceptable," said Harald Vilimsky, a public safety policy official with Austria's conservative Freedom Party.  "Any punishment that falls a single day short of a life sentence is a mockery of the victims."

Many Europeans abhor the death penalty, and capital punishment is illegal across the 27-nation EU.  But in many countries, even convicted murderers handed life sentences seldom serve more than 25 years.

Sweden has life imprisonment for murder, but the sentencing guidelines go as low as 10 years. That applies — in theory at least — even to serial killers. In Germany, convicted rapists are punished with sentences of six months to five years.  Serial cases, and those involving weapons or death threats, can fetch up to 10 years in prison — but also as little as 12 months.  Poland's maximum for rape is 15 years, and that would apply even for sexual assaults repeatedly carried out over two dozen years as alleged in the Austrian case.  The standard time served? Two to 12 years.

"It's rare that anyone serves the full sentence in Europe," said James Whitman, a professor of comparative and foreign law at Yale.  "It's expected that people are let out early."

In the U.S., by contrast, first-degree rape is punishable by up to life imprisonment in states ranging from Maryland to South Dakota.  Experts say Europe's shorter sentences — and its reluctance to jail people for offenses considered minor, such as possessing small amounts of marijuana — help explain why its prisons are far less crowded than U.S. lockups.

May 1, 2008 at 02:21 AM | Permalink


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Naturally, instead of studying Advanced Criminal Procedure, this is the incident my study group wanted to talk about.

Clearly a heinous case, but it should be evaluated in light of European norms and their approach to criminal sentencing. They have nothing resembling our violent crime rate. There is nothing compared to Detroit in Europe, certainly.

I would also hesitate to expand U.S. sentencing norms to cover European sexual offenses in light of this case. We do not have many parallel examples of this kind of crime, apart from fiction (Flowers in the Attic comes to mind). We've gained nothing (and lost a great deal) by overreacting to drug crimes. We still don't know what the sex offender reforms will cost us.

Perhaps I am too skeptical because I am generally pro-defense, but something about this case makes me skeptical. Twenty-four years, without knowledge on the part of the mother? Neighbors? No escape? Six (living) children? AND the father was a convicted sex offender? Something here doesn't meet the plausibility test.

Posted by: Alec | May 1, 2008 3:40:21 AM

This may sound a bit harsh, but the bottom line is that if the society, for such a heinous crime, chooses only to give a short sentence, the victims have every right to extract their own justice.

Posted by: federalist | May 1, 2008 5:18:04 AM

I wouldn't take a newspaper article that says that rapists in Europe get "six months" too seriously. I suspect that most countries have sentencing regimes similar to our own, which, if you add in state regimes are very complicated.

Posted by: S.cotus | May 1, 2008 6:55:54 AM

I wonder what the relative violent crime rates are in these countries with shorter prison terms? My guess: The US sees little public safety benefit from its substantially longer sentences.

Bad law often gets made when rules are changed in the wake of an exceptional case, and this is one of the most exceptional on the planet. The offender will likely die in prison, so Austrian law adequately protects the public in this case.

I agree with federalist the victims can take matters into their own hands if they like, and would only add that then that person should be prosecuted, too. If vengeance is so important to you that you're willing to sacrifice your own liberty, that is of course your decision to make.

Posted by: Gritsforbreakfast | May 1, 2008 9:29:22 AM

Federalist writes: "This may sound a bit harsh, but the bottom line is that if the society, for such a heinous crime, chooses only to give a short sentence, the victims have every right to extract their own justice."

That's not harsh. That's idiotic. The way to change sentencing laws is through a legislature. The victims have no right to extract anything outside the bounds of the law.

Posted by: John | May 1, 2008 10:57:53 AM

ah yes, the bloodlusting twit "federalist" shows his true colors again, touting the [a]"morality" of the state of nature.

no wonder that we have a government that considers itself above law and treaty, that tortures and lies. The rule of law? What a quaint concept.

"federalist" clearly has a 100%-correct insight into "justice," and he also trusts, absolutely, our government to ascertain this justice and kill those it finds unjust.

hilarious that "government-run health care" is such a bogeyman of the right, but that quasi-fascists like "federalist" place such absolute faith in the ability of the same government to sift out, flawlessly, the innocent from the guilty and to kill only the latter.

Posted by: Sentencing Observer | May 1, 2008 11:24:13 AM

The requirement that victims stay their hand is not dictated by morality, but practicality (i.e., we cannot have a lawless society), and one part of the deal is that the society has to vindicate victims. If it does not, it is very hard to tell victims "Thou shalt not seek revenge".

In South Africa, one of the bitterest complaints was that the laws were not being enforced in black townships. Was victim retribution wrong there? Now, obviously, Austria and South Africa are a lot different, but on a micro level, it's very easy to see how quickly "the state of nature" prevails. Take, for instance, Minneapolis. Aggressive bike riders protesting whatever happens to be the cause du jour decide to, en masse, block traffic. The cops stand by and do nothing. Are we really to expect that people blocked in traffic are supposed to simply sit in their cars? And what if some of them decide that they are not going to take it--do the cops have the right, after acquiescing to the blocking of traffic in the first place, to arrest those who are taking matters in their own hands. Or what about the take-over in Hawai'i? The police did nothing, while state workers were trapped inside--would the state have the right to prosecute a state worker who decided to use force to get his car out? I am not so sure that it would, no matter what the law actually says.

My point, of course, is that the "state of nature" is never really too far away, and we have to be ever-cognizant of what we demand of individuals in society. Asking people to suffer grievous losses with little or no punishment to the offenders is a demand fraught with issues.

Posted by: federalist | May 1, 2008 12:20:07 PM

"federalist" must have really enjoyed reading "Lord of the Flies" in middle school.

Posted by: Sentencing Observer | May 1, 2008 2:15:57 PM

And Sentencing Observer apparently thinks that snark substitutes for thought . . . .

Apparently, Sentencing Observer, you've never given thought to the coerciveness behind John's comment: "The way to change sentencing laws is through a legislature. The victims have no right to extract anything outside the bounds of the law." Was that true in South Africa? Would it be true in Zimbabwe today? Or what about victims of the Bali bomb blasts--do they have to swallow the absurdly light sentences given to terrorists responsible for the deaths of over 200 people? Or what of the victim of Judge Real's shenanigans on the bench, which cost the victim $30,000--what right does society have to tell him that he has no recourse whatsoever (note, I am saying "right" and not "power"). These are not easy questions to answer--ultimately, your answer is "tough shit", and that's fine, it keeps society ordered, but make no mistake that it is coercion, and where there is coercion, there are questions raised, and they are difficult ones. But hey, I am just an idiot, what do I know?

Posted by: federalist | May 1, 2008 3:22:59 PM

And, while we're at it, can someone please explain why this crime, if it had happened here, would be constitutionally ineligible for the death penalty? Oh that's right, because the Supreme Court said so. This case lays bare the fundamental bankruptcy of Coker. It needs to be overruled.

Posted by: federalist | May 1, 2008 3:25:28 PM

"...whether harsher, U.S.-style sentencing guidelines might help deter such heinous crimes."

That begs the question: how prevalent are such "heinous crimes" in Europe? I'd guess not nearly as prevalent as in the U.S.

15 years fora 73 year old is most certainly a life sentence. I don't see what people are whining about. The guy will spend the rest of his life in prison. This just goes to show that sentencing is all about emotion and appeasement of people with agendas (victims always have agendas and that's why their opinions should not matter, and should be excluded, from criminal sentencing - just like how a habitual drunk driver should not be permitted to offer an opinion on what sentences should be for repeat DWI convictions).

Posted by: bruce | May 1, 2008 4:43:01 PM

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