How should society punish economic crimes

Why punishments ?: Nothing but retribution


Guest contribution by Prof. Dr. Tonio Walter


German criminal law scholars have so far not believed in the idea of ​​retaliation because it is believed that it would lead to harsh and nonsensical punishments. But now this punitive purpose is experiencing a renaissance with a new justification.

Two defendants were found guilty of sexually abusing children on a campsite in Lügde for years at the Detmold regional court on Thursday. The court sentenced her to 12 and 13 years' imprisonment. How did these sentences come about? Above all, the court considered how serious the guilt weighs the perpetrator and how much punishment is necessary in order to ensure a fair settlement of the guilt - that is, fair retribution. In doing so, the court took into account, for example, the manner in which the acts were carried out and the consequences for the children.

This is the way that the law specifies in Section 46, Paragraph 1, Clause 1 of the Criminal Code - the central norm for sentencing: "The guilt of the perpetrator is the basis for determining the sentence." That is how non-lawyers think too, that is how everyone thinks. Just not the German criminal law teachers. For the purpose of punishment, the majority of them represent prevention theories: the theory of negative general prevention, that of positive general prevention and that of special prevention. Most think that one has to combine these theories ("union theory").

The law demands retribution - so do the citizens

Negative general prevention means deterrence, positive general prevention means strengthening trust in the validity of the norm, and special prevention means above all rehabilitation of the perpetrator. In the case of a crime, however, nobody calls for a punishment to deter other perpetrators. Nobody calls for a punishment to make it clear to the population that, for example, child abuse is still prohibited, i.e. to strengthen trust in the validity of the norm. Even more so, nobody demands a penalty in order to rehabilitate the perpetrator. Rather, people want justice above all else. And that is just retribution.

The prevention theories have further disadvantages: Deterrence only works when someone coolly considers whether to commit the act; and if he thinks there's a good chance he'll be caught if he did. The two rarely come together, almost never in the case of violence and sexual offenses. Strengthening trust in norms is superfluous for those serious crimes that most clearly call for punishment. And rehabilitation of the perpetrator is often just as superfluous, for example in the case of tax and economic crime as in the Hoeneß case.

In addition, on closer inspection, rehabilitation and punishment have nothing to do with each other: rehabilitation does not punish, and punishment cannot rehabilitate.

Punishments cannot rehabilitate

German law knows two main penalties: imprisonment and a fine. There is also the additional penalty of a driving ban. The evil - that is, the punishing - about the term of imprisonment lies in being locked up and leading a meager life. The evil of the fine is losing money, the evil of being banned from driving is having to use local public transport or taxis. None of this has been rehabilitated. On the contrary: These burdens make life more difficult, including life in the community, that is, they desocialize - especially in connection with an entry in the criminal record (BZR).

The imprisonment does this most strongly: nothing increases the likelihood of a relapse more clearly than its execution. Now one could demand that this be changed by improving rehabilitation in prison through better therapy and training offers. This requirement would be sensible, because such offers cannot be good enough. But nobody can be effectively forced to accept them, and they are not punishments, but rather aids during the actual punishment, the imprisonment in which they change nothing - any more than in the need to legitimize this evil.

Only the idea of ​​retaliation can do that. This applies even more to fines and driving bans, which cannot be re-socialized from the outset. Nobody has said that either - although the fine is the only content in around 80 percent of all convictions. No, criminal punishments can only really justify the idea of ​​retribution. Everything else - deterrence, improvement, security, rehabilitation - may be an accompanying program or a side effect of a punishment, but never its real purpose.

Prevent citizens from playing police

In the discussion about the theory of punishment, the idea of ​​retaliation has so far been predominantly associated with Immanuel Kant and the claim that it demands punishment as an end in itself. For a number of years, however, retaliation has been justified differently.

Actually, it's simple: just retribution creates a social benefit because it ensures legal peace by satisfying the citizens' need for justice. Otherwise there would be the danger that the citizens internally distance themselves from the unjust and ineffective state and take their rights into their own hands. Because this idea refers to social processes, one could speak of a sociological theory of retribution.

The social benefit to which it refers could again be described as prevention, that is to say, prevention. However, it is not about the prevention that is at the center of conventional prevention theories. While these theories aim to punish rape in order to prevent future rape, the new approach aims to punish people in order to prevent citizens from losing their trust in the police and justice system - and instead take their place: insulting inactive police officers, mistreating suspects and lynching real or alleged perpetrators.

Don't confuse screamers with the majority of citizens

The central question then, however, is who or what determines how much punishment is required for fair retribution. Old school retribution theorists try their hand at metaphysical deductions, all of which have the weakness of saying something only about whether the punishment will be punished and not its amount. For a sociological doctrine of retribution, on the other hand, a different standard is mapped out: the prevailing views of the majority in society on the amount of just punishment. Because these views can be determined empirically, the associated criminal theory can be called empirical-sociological doctrine of retribution.

Critics fear that it will lead to American conditions with draconian sentences and overcrowded prisons. After all, one can see in the social networks and hear at the regulars' tables that the judiciary is too lax for the citizens. But that confuses the voices of the screamers with the views of the majority, as can be determined in methodologically serious studies and detached from spectacular individual cases. For the USA in particular, it has been well researched that citizens actually consider their laws and the judiciary there to be too harsh.

In addition, the ultima-ratio principle sets limits to the consideration of the citizens' wishes for punishment. The state is not allowed to fulfill the maximum of such wishes - but only minimum expectations, that is, those expectations which the citizens consider to be unacceptably unjust if disregarded.

We need more empirical research

They can be determined by asking test subjects, with a view to a specific case description, which punishment they consider appropriate. Then you ask them if they could imagine a lower punishment than already and a higher one than still appropriate. The average value is formed from the lower limits determined - only from them.

Of course, such studies are a methodological challenge if they are to be representative and reproducible. And it would be an illusion to believe that you can use them to write seamless sending guidelines or a perfect penal code. All the more, they did not change the fact that courts always have to make their own sentencing decisions. But the question is also not whether such studies produce perfect results without problems. Rather, it is whether they enable usable insights at all, and they do.

This is different from traditional preventive criminal theories - and another shortcoming of those theories. Because the prevention, which they consider the purpose of punishment, can be empirically proven even worse or not at all. Your representatives hardly try that either. However, this is an impermissible abstinence under the rule of the Basic Law: the state may only resort to its sharpest sword if it can prove - at least in the beginning - that this is necessary.

Owning a joint is unlikely to arouse retaliation

This is also emphasized by my Augsburg colleague Johannes Kaspar in his habilitation thesis on proportionality and the protection of fundamental rights in preventive criminal law (2014). This common conviction has led to the fact that we organized a conference on the subject of punishment "in the name of the people", at which Kaspar carefully approached the empirical-sociological idea of ​​retribution, while the limitation of this idea through the ultima-ratio principle became clearer to me has become; the conference proceedings will be published in autumn.

In criminal policy, however, criminal law can be expanded if empirically determined notions of justice are taken into account. For example, very few people should be able to convey that negligent homicide, even in the case of gross recklessness and numerous victims, can never be punished more severely than theft (Section 222 StGB). A real corporate criminal law could also be justified in this way; for example, when you ask citizens how they rate VW's behavior in the diesel scandal.

But an empirically based retribution thinking also draws limits to criminal law. An example is provided by Section 217 of the Criminal Code. He makes assisted suicide a criminal offense if the helper intends to do so in other cases as well (misleadingly referred to as "businesslike" by law). This contradicts what all surveys on this subject have shown as the moral convictions of the citizens. About 83 percent of those questioned in an infratest-dimap survey from November 2014 were in favor of legalizing assisted suicide. Likewise, the criminal liability of owning a joint for personal consumption is unlikely to arouse retaliation from citizens.

In the Lügde abuse case, too, the judges took into account circumstances that reduce the need for retaliation, such as the confessions, when determining the sentence. But in doing so, as in general, they were only able to fall back on their own intuitions of justice. It would be better if knowledge were available about the sense of justice of the people in whose name they have to judge. The same applies to the legislature if, as a representative of this people, it creates or abolishes penal laws.

Both are particularly obvious if one recognizes the purpose of the punishments in ensuring fair (minimum) retribution. They can't do more than that.

Prof. Dr. Tonio Walter is a judge at the Bavarian Supreme Court and holds a chair for criminal law at the University of Regensburg.