The German sanction instrument of preventive detention (Sicherungsverwahrung) has unleashed an ever more complex and almost inscrutable debate. I shall venture to assume that even in Germany only a few people have a comprehensive insight into the issue. All the more one should wonder, in how far that discussion is perceived as interesting outside of Germany. Certainly, preventive detention does not stand for any old question in criminal science. It touches on fundamental questions of criminology. It has a distinctive but questionable history. Due to statements of the ECtHR it has gained European attention and its significance for comparative studies has become apparent. Following the comments of German legislation and the Federal Constitutional Court, one may be very curious about what may be presented as remedy for the troubles preventive detention was originally designed to cure before it had turned out to be a problem in itself.

In the following, the matter of preventive detention shall be approached in a manner that does not seek to reproduce the most sophisticated arguments of a discourse which meanwhile has taken on features of a hermetical science. It shall rather address the key questions and arguments which are of veritable importance to the self-conception of criminal science as a whole and to the conceptualization of the role of sanctioning in a modern society. I am glad that the subject can be presented in such a respectable forum and that all its relevant dimensions are discussed by authors who do not only have the expertise but also the readiness to bring the subject to a manageable size that may help to promote the debate on the European level.

The basic problem of preventive detention is indeterminate imprisonment as a threat to the guarantee function of law. Foucault has analysed the problem in the context of his famous theory on the birth of the prison. The institution of the prison brings about a type of observation which makes inmates ideal sample subjects for scientific explanation and exploration. It is no coincidence that criminology as a science has evolved in the wake of prison visits by an Italian physician. The institution of the prison promotes forms of knowledge that detach themselves from the legal construct of the offense and focus on the individual offender, especially as inducer of further crimes. Recidivism turns to be the key concept. Foucault notes: “Throughout the penal ritual, […] a domain has been penetrated by objects that not only duplicate, but also dissociate the juridically defined and coded object. Psychiatric expertise, but also in a more general way criminal anthropology and the repetitive discourse of criminology, find one of their precise functions here: by solemnly inscribing offences in the field of objects susceptible of scientific knowledge, they provide the mechanisms of legal punishment with a justifiable hold not only on offences, but on individuals; not only on what they do, but also on what they are, will be, may be.” (Foucault, Discipline and Punish, London: Penguin, 1991, p. 18).

Not only the methods of improvement and resocialization, but also the techniques of governing risky individuals by incalculable forms of imprisonment are the logical consequence of an arrangement that determines the offenderas “to be known according to specific criteria” (Foucault, ibid., p.102). Thereby, the individual’s breach of law is no longer the main issue of concern. It is “a rather different object, one defined by variables which at the outset […] were not taken into account in the sentence” (Foucault, ibid., p. 251). It follows the logic of cross-borderismbetween “penal discourse and psychiatric discourse” (Foucault, ibid., p. 252) that it is not convenient to irrevocably define the duration of imprisonmentat the time of judgement. Extending the custodial regime is crucial in a sanctions systemguided by considerations of utility.

This can easily be proven by the writings of Lombroso and von Liszt, who can surely be regarded as the criminological pioneers of preventive detention. In his influential exposition of the so-called Marburg Manifesto (1882/83), von Liszt notes that the treatment of the incorrigible (habitual criminals, Gewohnheitsverbrecher) shall be guided only by the need for public protection. Hence, in a cultural and political environment in which deportation or execution of offenders cannot be enforced, imprisonment for life or indefinite detention remains the only viable option. According to von Liszt, an offender should be detained indefinitely as soon as having received three convictions forcertain crimes. Detention shall take place in special institutions and release shall be possible only in very few exceptional cases.

Even before von Liszt, Lombroso, in his ground-breakingwork "L’uomo delinquente", had called for consequences from the propositionthat crime is a natural phenomenon (Lombroso, Criminal Man, Duke University Press, 2006, p. 92). He was not convinced of the rehabilitative effects of imprisonment and made the criminal justice and prison system of his time a target of modern and advanced criticism. As always, however, humanity and enlightenment have a dark side. The abolition of punishment prepares the way for a much more hard-lined stance: “Fortunately, my scientific findings, far from making war on social order, reinforce it. Crime is necessary, but so is defense against it […].When we justify punishment in terms of social defense, it becomes more logical and effective. […] I do not agree with those famous jurists who argue that all offenders should go to prison because they freely chose to break the law. However, if anyone argues that offenders should be incarcerated to protect society, then I agree. That is the theory of social defense” (Lombroso , ibid. p. 92 et seq.). In the second edition of Criminal Man, Lombroso affirms that indefinite detention of the incorrigible forms a part of the “new therapies” and “innovative defenses" (p. 135). Such instruments seem to him no more inhumane than placing the mentally ill in a mental institution (p. 146). However, humanity is not the chief concern: “Criminal insane asylums are more a precautionary than humanitarian measure. […] The new institutions would prevent dangerous people from reentering society before they are entirely cured.” (p. 148) Contrary to von Liszt, who envisaged a hard labour camp with exceptionally harsh and inhumane living conditions, Lombroso’s vision was more humane and anticipated, interestingly enough, the very argument that was recently brought forward by the Federal Constitutional Court: the deprivation of liberty effected by preventive detention must maintain a distance from the execution of a customary prison sentence (Abstandsgebot). Ideally, according to Lombroso , the detainees should be placed on an island, with fresh air and time for themselves (p. 145).

 

To understand the problems arising from preventive detention, one must fully understand the type of criminology that has paved its way. The crucial assumption is that something in the nature of an individual could determine her to rule-violating, deviant and criminal behaviour. Lombroso envisaged all kinds of modern explanations: cerebral abnormalities, neurological dysfunctions, hereditary and hormonal factors, atavism, personality disorders etc. All these explanative strategies tend to assume that criminogenic factors are stable and unchanging. For Lombroso, occasional criminal behaviour is an insignificant phenomenon. For von Liszt, it is habitual criminals who pose the most urgent crime policy problems. Although there is no empirical evidence supporting these assumptions, they nonetheless form the conceptual framework on which the idea of indefinite detention is based.

Criminological theories of the Lombroso-Liszt type transform the offender into a delinquent, as was outlined by Foucault, describing the delinquent as a criminal in “affinity with his crime” (Foucault , op. cit., p. 253). The assessment of this subject generates expert systems and discourses that supersede the legal expertise: “Throughout the penal procedure and the implementation of the sentence there swarms a whole series of subsidiary authorities. Small-scale legal systems and parallel judges have multiplied around the principal judgement: psychiatric or psychological experts, magistrates concerned with the implementation of sentences, educationalists, members of the prison service, all fragment the legal power to punish; it might be objected that none of them really shares the right to judge […]. But as soon as the penalties and the security measures defined by the court are not absolutely determined, from the moment they may be modified along the way, […]one is handing over to [others] mechanisms of legal punishment to be used at their discretion.” (Foucault, ibid., p.21) The problem at the heart of the question, however, is not the loss of the judiciary’s authority or influence, but rather the excessive nature of the sanction. The principle of proportionality does not provide a viable solution either, as imprisonment must be rendered proportional as long as an expert opinion testifies to the disproportionate danger of the offender. “The right to punish has been shifted from the vengeance of the sovereign to the defence of society. But it now finds itself recombined with elements so strong that it becomes almost more to be feared.” (Foucault, ibid., p.90).

 

 

 

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In the history of German criminal law, the concept of preventive detention(“Sicherungsverwahrung”) has existed for centuries.¹ Already the ConstitutioCriminalis Carolina, 1532, the criminal code of the Holy Roman Empire, permits the confinement of dangerous persons for an unlimited period.² In the late 18th century the penal servitude is generally established, and the modern jail sentence arises. Around the same time the Prussian penologist Ernst Ferdinand Klein (1744–1810) initiates a scientific debate on how preventive detentioncan be dogmatically and practically interpreted in relation to the prison sentence.³ He also implements custody penalties into the criminal law of the Prussian Law Code,1794.⁴

In the late 19th century, Franz von Liszt (1851–1919) revives the concept of preventive detention in his “Marburger Programm”, 1882/83, where he defines different types of contraveners and the appropriate forms of sanction. For one type, the incorrigible habitual criminal (“unverbesserlicherGewohnheits-verbrecher”), he proposes the permanent placement in preventive detention.⁵ The dogmatic quality and justification of preventive detention, and the question whether it can be interpretedas a penalty, is one of the pivotal points in the discussion of penologists in the late 19th century (so-called “Schulenstreit”)⁶. As a compromise the Swiss Carl Stooss (1849–1934) develops the concept of double-track-system (“Zweispurigkeit”), which applies till nowadays: Preventive detention does not belong to the category of penalty, but is considered necessary and belongs to the category of reprimands.⁷

In the beginning of the 20th century the German lawmakers aim to implement preventive detention (and other reprimands) into the Criminal Code,⁸ but its conditions and execution vary considerably in accordance to the several discussed drafts.The draft of 1909 still continuesthe tradition of danger prevention by the police: Certain criminal offences based on immorality or idleness entail the placement in a workhouse for a period of one to three years, if necessary to accustom the convict to a decent and diligent life. The competence for an early release lies within the police authorities (§ 42).Professional or habitual criminals (“gewerbs- odergewohnheitsmäßigeVerbrecher”)are punished with an extended penal servitude (§§ 87–89); per contrathe draftrepudiates an additional un¬limitedpreventive detention.⁹

The draft of 1913, based on an alternative draft of 1911¹⁰, implements the concept proposed by Stooss: A convict who has been serving five or more considerable custodial sentences and reoffends, is to be convicted to penal servitude, if his doings expose him as a dangerous professional or habitual criminal (§ 121). Furthermore, for these individuals preventive detentionis to be ordered obligatorily for anunlimited period of time (§ 106). The police authorities are competent to release the improved convict. If preventive detention is to be extended for more than three years, this has to be decided by a court of justice (§ 107)¹¹. This 1913 draft, made during the reign of the last German Emperor, is adopted in a draft in the early Weimar Republic in 1919¹².

The drafts outlined during the 1920s demand increasingly strict conditions on when to impose preventive detention. A draft of the Ministry of Justice in 1927 ischaracteristic: Though in § 78 (reproducing § 121 of the 1913 draft) two (instead of five) previous custodial sentences are sufficient to impose penal servitude, the decision is now left to the discretionary power of the court. Additionally, a preventive detention sentence demands that the former sentences already led to penal servitude, not only to prison (cf. § 59, reproducing§ 106 of the 1913 draft). In the respect of preventive detention, the judges, once more, execute discretionary power.The draft also emphasizes that the criminal courts (not the police nor administration courts) hold fullcompetency for order and execution of preventive detention, as well asthe release of the convict. This aims to protect the individuals from arbitrary acts.¹³

However, dissent and parliamentary quarrels of the years make it impossible to pass a bill before 1933. With the National Socialists coming into power, they finally pass a law on preventive detention on 24th November of the same year: “Law against the dangerous habitual criminals, stating reprimands for prevention and improvement” (“GesetzgegengefährlicheGewohnheitsverbrecher und überMaßregeln der Sicherung und Besserung”)¹⁴. The National Socialists refer to the drafts of the preceding years, but, mocking the former lawmakers’ inaptitude and weakness, considerably tighten the regulations:¹⁵

To rate someone as a dangerous habitual criminal and impose an extended penalty on him demands an evaluation referring to all hiscommitted crimes (cf. § 20a, corresponding with § 121 of the 1913 draftand § 78 of the 1927 draft): Either two or more former prison sentences of six months minimum each in the previousfive years and an additional new crime entailing a prison sentence are now necessary to impose preventive detention, or three sentences of any kind in the previous five years and a new crime of any kind.§ 42 (cf. § 106 of the 1913 draftand § 59 of the 1927 draft) states that for convicts punished according to § 20a, preventive detention is to be imposed obligatorily in addition to the sentence if the public safety requires it. Thus, according to the latter combination of conditions, preventive detention can (even) be imposed on the petty criminal.

Ideologically, this law is closely connected to the eugenic ambitions of the Nazi regime. Vulgar Darwinism, developedin the late 19th century, is combinedwith the idea that addiction to crime is caused by a genetic defect. In this context, preventive detention also aims to prevent reproduction. Beyond that, the bill enables (like the 1927 draft) an emasculation of dangerous sexual offenders, reducing the obligatory minimum age from 25 to 21 years (§ 42k). Since these ideas are contiguousto sterilisation legalized through the “Law for the Prevention of Reproduction of the Hereditary Diseased” („Gesetz zur Verhütung erbkranken Nachwuchses“,14.7.1933),¹⁶ both measures are often confused within common percipience.¹⁷

In practice, preventive detention in the period from 1934 to 1945 leads to impressive numbers: About 16000 individuals are held in preventive detention, more than 80 % as a consequence of (mostly simple) theft or fraud. So what should have been appropriate for the exceptional case – the most dangerous offender –has been deployed to the normal case: the petty criminal. A further characteristic of the practice in this period is that about 25 % of those kept in preventive detention are transferredto concentration camps, mainly in 1942–43.¹⁸ Overall, preventive detentionruled by justice competes with protective custody (“Schutzhaft”) ordered by the policeleading to detention in (SS-controlled) concentration camps. This radical criminal policy during the National Socialist yearshas one main aim: the annihilation of the habitual criminal through labour (“VernichtungdurchArbeit”).¹⁹