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September 13, 2010

"The Concept of Evil in American and German Criminal Punishment"

Img_qsgrLK The title of this post is the title of this very interesting new article by Joshua Kleinfeld appearing on SSRN.  Here is the abstract:

The gap in harshness between American and German criminal punishment represents a moral disagreement between the two societies: American criminal punishment expresses a belief in the concept of human evil, while German criminal punishment denies that belief.  This paper, after giving the concept of evil some philosophical definition, develops that thesis with six lines of argument.

First, contrasting American and German responses to major crime, the paper argues that American criminal law routinely banishes its worst criminal offenders, while German criminal law almost never does.  Second, as to minor crime, American law treats misdemeanors as portents of worse things to come, while German law treats them as errors.  Third, in the context of recidivism, America punishes the person, Germany the act.  Fourth, with regard to community reintegration, American law approaches ex-cons with a concept this paper terms “residual criminality,” while German law adopts norms of full forgiveness.  Fifth, as to capital punishment, America treats the right to life as alienable for wrongdoing; Germany treats that right as inalienable.  And sixth – turning here from interpreting criminal doctrine and practice to analyzing the historical record – the paper shows that various players in the American criminal system have given voice to the belief in criminal evil, while major players in the German system have expressly denied that belief.

The paper concludes by asking which system is more just, arguing that German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike.

September 13, 2010 at 08:05 AM | Permalink


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Best. Graphic. Ever.

Posted by: Anon | Sep 13, 2010 8:54:21 AM

That Germany could deny the existence of evil is astounding. It's not like they'd have to look too far back to find it.

P.S. This is not to cast aspersions on Germans, my father's parents having been among them. But Germany is the last place on the planet you'd expect to find widescale denial of the existence of evil.

Posted by: Bill Otis | Sep 13, 2010 9:48:18 AM

And as a consequence of the US mindset, it exports its callous and ill-considered attitudes to those countries which have even less sophisticated understandings of Human Rights:

Tens of thousands of detainees held without trial in Iraq, many of whom were recently transferred from US custody, remain at risk of torture and other forms of ill-treatment, Amnesty International says in a new report published today.

The 57-page report, New Order, Same Abuses: Unlawful detentions and torture in Iraq, describes how thousands of people in the country have been subjected to arbitrary detention - often in secret prisons - sometimes for several years without charge or trial, while many have also suffered severe beatings to obtain forced confessions.

Amnesty estimates that 30,000 detainees are currently held without trial in Iraq although the Iraqi authorities have failed to provide precise figures. Ten thousand of these were recently transferred from US custody when the USA’s combat operations in Iraq ended, though no guarantees against torture or ill-treatment were included in the handovers.

Thousands of people continue to be detained despite judicial orders issued for their release, and a 2008 Iraqi Amnesty Law which provides for the release of uncharged detainees after between six and 12 months.

Amnesty International Middle East and North Africa Director Malcolm Smart said:

“Iraq’s security forces have been responsible for systematically violating detainees’ rights and they have been permitted to do so with impunity.

“Yet, the US authorities, whose own record on detainees' rights has been so poor, have now handed over thousands of people detained by US forces to face this catalogue of illegality, violence and abuse, abdicating any responsibility for their human rights.”

Posted by: peter | Sep 13, 2010 9:48:24 AM

Ironic. Our sicko philosophy of Legal Realism came from the German Free Law Movement. It was taught to Cardozo by Llewellyn of contract genius fame. It used to be the writing was everything. If the signature was above the date on a will, the will was void because of the written rule, the signature must be the last writing. I admit that is excessive reliance on the writing. The remedy is to change the rule, not to run roughshod over the written law.

A sibling to Legal Realism, also from the loins of the Free Law movement? The Nazi judiciary. Until 1943, when new laws were enacted, what the police did to minorities, who committed no crime, the seizures of assets, all that was forbidden by the writing. They had judicial activism, which permitted the detentions, seizures, and execution out of "Necessity." It is less well known. The prison system of the Nazis was bigger than the concentration camps, and was used to extract slave labor and to kill people by overwork, under nourishment. Those boys sure were busy.

I doubt that Germany has a low crime rate since they likely toss out or discourage the reporting of crime victimization of minorities.

Posted by: Supremacy Claus | Sep 13, 2010 10:10:43 AM

Hitler was a habitual judiciary basher, as soft on crime. A tidbit for the left here.

Posted by: Supremacy Claus | Sep 13, 2010 10:14:48 AM

peter --

Just so you'll remember: It was the "backward" United States that, principally among the allies, put an end to the most savage abuse of human rights in hundreds of years, or maybe ever.

You might consider giving credit where credit is due instead of just trashing the country.

Posted by: Bill Otis | Sep 13, 2010 11:15:54 AM

That Germany treats the right to live as inalienable is an outrage! How could such a proud people be proud of that system? We need vengeance; we need expendable lives!

Posted by: neanderthal | Sep 13, 2010 11:46:54 AM

The thing about evil is that it often comes disguised as good. Even Satan can appear as an angel of light. The problem with our system isn't the existence of evil, its the labeling of people who make mistakes or just do dumb things as evil while failing to see the real evil. Are some criminals evil? Yes, I think so. Are most criminals evil? No, I don't think so. There are many reasons people engage in criminal behavior. Sometimes people just do stupid things. Some people are just products of their backgrounds. When you grow up in certain neighborhoods its almost inevitable that some will become involved in drugs or other criminal activities. Evil is the explanation for only a small percentage of criminals.

Unfortunately, evil sometimes exist in other places and most people are fooled into believing it is good. I think the vast majority of prosecutors and judges are good people. But, I know of a few that are clearly evil. They fool the public into believing they are just tough law and order types who are protecting society when in reality they have a sick need to use their power to inflict pain and punishment on as many people as they can without regard for the truth or actual innocence or guilt. The guys in the white hats aren't always the good guys.

I recall hearing a story about a missionary to a village in Africa. The people of the village told him that when he walked into the village the evil spirits left and wouldn't return as long as he was there. That was because there was a more powerful spirit in him. Later that missionary brought the chief of the village to the US for a visit. The chief said that we have the same evil spirits here that were in his village but that people here don't see them. Yes, evil exists. Unfortunately, most of us are deceived by it.

Posted by: mls | Sep 13, 2010 12:52:37 PM

"German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike."

Put as a statement rather than a question this is about as close to the truth of the matter as you can get. And all of the responders are too wrapped up, in typical lawyer fashion, over complicating the issue and protecting their own little viewpoints to acknowledge the simple truth.

Posted by: Just Sayin' | Sep 13, 2010 12:55:57 PM

Es lebe die Freiheit; es lebe der Wein!

Posted by: anon 14 | Sep 13, 2010 4:48:02 PM

"Just so you'll remember: It was the "backward" United States that, principally among the allies, put an end to the most savage abuse of human rights in hundreds of years, or maybe ever."

Does the fact that the Soviet Union was right there with us make them "forward"?

Posted by: Michael Drake | Sep 13, 2010 7:54:04 PM

Michael Drake --

The point, which you could not help knowing if you read his posts, is that peter has a one-sided, irrationally antagonistic attitude toward the United States that is unjustified by any reasonably balanced view of our history. And if you seriously are pushing the proposition that the USA is anything like what the USSR was, you are right there with him.

Posted by: Bill Otis | Sep 13, 2010 9:43:16 PM

Bill, my point - which is about the logic of your argument - turns precisely on the assumption that the US is not like the USSR. Think about it.

Posted by: Michael Drake | Sep 13, 2010 9:59:53 PM

Thanks. Anon. Maybe I will have to title my next article "Curse You, Perry The Platypus!"

Posted by: Doug B. | Sep 13, 2010 11:33:21 PM

"America executes its worst criminals" ... more like parts of America.

This article sounds like a companion piece to a new book, "Were you born on the wrong continent? : how the European model can help you get a life" by Thomas Geoghegan, which also addresses German practices.

Posted by: Joe | Sep 14, 2010 11:01:47 AM

Michael Drake --

I am happy to rest my argument for resolute enforcement of the law in part on the fact that it is criticized by those, apparently including you, unable (or far more likely, unwilling) to distinguish between the moral standing of the United States and that of the Soviet Union. If similar thinking informs your overall view of American law, all I can say is, go for it.

While you're at it, maybe you could describe George Bush' role in planning 9-11. Do you think Cheney and Rumsfeld were in on it too? The Israeli's? Sarah Palin?

Liberal commenters, dontcha want to jump on Mr. Drake's USA=USSR bandwagon? C'mon guys, dont get shy on me now!

Posted by: Bill Otis | Sep 14, 2010 8:34:13 PM

sorry bill but the US lost it's moral standing the day it decided to ENFORCE it's views on the world and back them up with FORCE. At that point we DID become just another version of nazi germany or communist russia. Sorry a dictoatorship even a bevenolivent one is STILL a DICTATORSHIP!

Posted by: rodsmith | Sep 15, 2010 2:57:48 AM

rodsmith --

I don't count you as a liberal commenter. Most of your outcomes are liberal, true, but I see you as not all that ideological and as a person who calls them as he sees them.

Posted by: Bill Otis | Sep 15, 2010 8:32:44 AM

lol thanks. no i'm not a liberal. i still think you should if you are able to work then you should work for a living. I have no problem with tax breaks BUT they should be limited only to WHAT YOU PAID IN! NO EXTRA! If the govt rules say you make so little you should pay no taxes that is fine. BUT it's not right to pick other taxpayers pockets to give you more than you paid in.

Posted by: rodsmith | Sep 15, 2010 5:00:00 PM

It's not always evil impulses that prompt America to do bad things. More often it's greed and a pervasive sissy complex. Apparently nothing is more terrifying to god-fearing Americans and their elected representatives than being seen as insufficiently macho or, worse, bleedin'-heart merciful. Apparently there's absolutely nothing we won't do for a buck or a fleeting moment in the he-man spotlight.

Posted by: John K | Sep 15, 2010 10:38:53 PM

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