Social structure and crime policy: The German case
| Author | Fritz Sack |
| Published date | 01 October 2013 |
| Date | 01 October 2013 |
| DOI | http://doi.org/10.1177/1462474513500620 |
| Subject Matter | Articles |
Article
Punishment & Society
15(4) 367–381
! The Author(s) 2013
Social structure and
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crime policy:
DOI: 10.1177/1462474513500620
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The German case
Fritz Sack
University of Hamburg, Germany
Abstract
The article discusses the widely debated comparative question about the scope and
regional range of the ‘punitive turn’ in criminal policy, in particular with respect to the
German situation. The argument starts with two similar attempted ‘lynchings’ that took
place in England in 1998 and in Germany in 2012. The concept of ‘American excep-
tionalism’ is used as a reference point for identifying the role Germany plays in the
discussion about the radical change of criminal policy. However, it is applied in the
reverse sense to investigate the ‘received wisdom’, especially in English-speaking crim-
inology, that ‘German exceptionalism’ is one of the ‘benign’ cases ‘deviating’ from the
punitive tendency that exists in other countries. The article presents some evidence and
a number of expert voices that reveal an ‘insider’s view’ that contrasts strongly with
outside perspectives. The article concludes with some reflections about the ‘extra-
criminological’ sources of the punitive turn which Germany shares with the countries
that are known as the core exemplars of the punitive changes in penal policy.
Keywords
controversial view on German criminal policy, extra-criminological sources of the
punitive turn, German imputed exceptionalism, punitive turn
Introduction
I would like to introduce this article by describing a dreadful crime that happened
in 2012. In a car parking lot of a small town in the North of Germany, an 11-year-
old girl was sexually abused and subsequently killed. Unsurprisingly, the media
coverage was instantly enormous and the police came under heavy public pressure.
Corresponding author:
Fritz Sack, University of Hamburg, Institut fu¨r Sicherheits- und Pra¨ventionsforschung (ISIP), Bogenallee 11,
20144, Germany.
Email: sack@uni-hamburg.de
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Punishment & Society 15(4)
Only three days later the police arrested a 17-year-old male suspect to interrogate
him and declared that they probably had captured the culprit. This declaration was
made despite the fact that the questioning by the police was still in progress and
that there was neither unequivocal evidence nor a confession. The police officers
had taken the suspect in handcuffs from his parents’ house to the police station,
where he was questioned for more than four hours up to midnight.
On the suggestion of a Facebook user, around 50 persons gathered to form a flash
mob outside the police station, threatening to storm the place and to capture the
accused and to kill him. Officials spoke of a lynch mob. After three days of detention,
the suspect had to be released as the suspicion could not be corroborated.
I have dwelt on this case because it allows me to draw striking parallels to a
similar incident in England that Zygmunt Bauman used as a theoretical metaphor
for his sociological analysis, In Search of Politics (1999). Bauman starts his analysis
with reference to comments in the newspaper, The Guardian: ‘on widely reported
events triggered in three different towns of the West Country by the news that . . . [a
paedophile] had been released from prison and returned home’ (1999: 9). Bauman
continues by quoting extensive theoretical and empirical insights from the obser-
vations of a ‘reporter blessed by a sociological sixth sense’ (1999: 9). The Guardian
reporter tells of a ‘protracted siege to the local police station’ and of people shout-
ing ‘kill the bastard’. The aspects of this event are literally identical to the German
event described above. This factual match of two instances that differ with respect
to time, geography and nationality may be taken as a shorthand anticipation of a
thesis that I want to elaborate in some more detail in the article.
There are still more parallels between the two events in England and in Germany
which epitomise my argument. Later in his book, Bauman (1999) refers to several
examples of attempts by politicians to ‘make crime pay’ (Beckett, 1997), notably
during political campaigns. In this context it seems worth mentioning a rather infam-
ous public statement made by the former German chancellor Gerhard Schroeder in
response to a brutal sexual crime against a girl who was subsequently killed (inter-
view with Schroeder in Bild am Sonntag, 8 July 2001). Questioning the feasibility of
the social rehabilitation of sexual offenders, Schroeder stated: ‘Therefore, there can
be only one solution: ‘‘lock them up, that is for ever’’.’ This political statement from a
high-level politician brings me still closer to the core of my argument.
In this article I want to analyse an issue that has much been discussed by a host
of colleagues, politicians, journalists and others. Plenty of space in newspapers,
scientific journals and political statements has been devoted to an apparent U-turn
in the way societies deal with their ‘criminals’ and ‘deviants’. This discussion began
during the last decades of the last century and continues to the present. I present
my ideas in five steps.
Two types of exceptionalism
My point is to discuss whether a widely held belief in what I like to call ‘German
exceptionalism’ is valid and can withstand empirical scrutiny. My central
Sack
369
contention is based on the assertion that perspectives that developed from the
outside about German penal policy can be boiled down to an assumption of a
reversed ‘exceptionalism’.
To explain what I mean by ‘reversed exceptionalism’, I would like to make
reference to a remarkable criminological controversy that goes back more than
two decades – to the ‘Tenth World Congress of Criminology’ that took place in
autumn 1988 at the University of Hamburg. In one of the plenary sessions the
Dutch criminologist Jan J. van Dijk (1989) presented a broad and ambitious ana-
lysis of the permanent decrease of imprisonment and its substitution by measures
less restrictive of freedom, which he took as further empirical evidence of Norbert
Elias’s thesis of the ‘civilising process’.
As one might imagine, there were some spontaneous reactions and counter-
arguments to Van Dijk’s analysis – on theoretical as well as on empirical grounds.
Notably, American colleagues opposed Van Dijk’s suggestions on the basis of their
knowledge about the diverging case of the USA, which at that time was well on its
way to the top position in the international league table of incarceration rates.
However, at that time Van Dijk could still defend his point by referring to the
American situation as an exception from the rule, thereby capitalising on and
profiting from an argument that can be found in other contexts and fields of
comparative analysis between Europe and the USA, notably in history.
Indeed, ‘American exceptionalism’ has also become a prominent concept in the
discussion about changes in criminal policy. ‘American exceptionalism’ is used in
criminology in a pejorative sense and it is used to indicate the distance of a specific
situation or of a specific development from its American counterpart. The notion
of ‘German exceptionalism’ that I have in mind, however, is just meant to indicate
the opposite.
Germany, among other countries – especially the Scandinavian nations – is
widely considered by criminologists to be an outstanding positive example that
is contrasted with the exceptional punitiveness in which the USA has had a van-
guard role.
In an article about ‘The macho penal economy’, Downes (2001) expresses some
doubts about the common rejection of the leading role of the USA with respect to
penal policy. ‘The cliche´ that what happened in California yesterday is happening
in the rest of America today, and will happen in Europe tomorrow, cannot be
lightly dismissed’ (2001: 62).
The ‘punitive turn’ in criminal policy
What has become widely known as the ‘punitive turn’ is denied by only a few
experts, at least so far as the USA and the UK are concerned. What can be
observed about English-speaking criminology is that there appears to be quite a
host of voices and studies which take it as a given fact that contemporary criminal
law has deviated from its traditional path of mitigating and moderating the force
and harshness of punishment – a process which has been characterised as
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Punishment & Society 15(4)
humanisation and rationalisation in more philosophical terms, as a plurality of
so-called ‘de’- processes: decriminalisation, depenalisation, de-institutionalisation.
Some revealing references may be helpful for the discussion. That which comes
to mind first and foremost is, of course, David Garland and his study The Culture
of Control (2001), which triggered considerable comparative research. There were,
however, other authors who had previously identified this trend in criminal policy.
The earliest source I have found that deals with such penal developments and
processes is a published lecture by Stuart Hall about ‘Drifting into a law and
order society’ which he gave on the Cobden Trust Human Rights Day in
December 1979 (Hall, 1980). It was one year after the publication of Policing the
Crisis (Hall et al., 1978) in which Hall and his colleagues explored the embedded-
ness of crime and penal policy matters in the wider social, economic, and political
aspects and...
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