What does constructive punishment mean in prison?

Internal security

Michael Kubink

To person

Professor Dr. Michael Kubink is head of division in the criminal law department of the Ministry of Justice of North Rhine-Westphalia, where he is responsible, among other things, for juvenile criminal law and for questions of crime prevention.

Already at the end of the 19th century there were efforts to find alternatives to the classic prison sentence and to promote the rehabilitation of the convicted. These approaches have been continuously developed and shape our current criminal law, which is characterized by the idea of ​​avoiding imprisonment, says Michael Kubink.
View into a prison room in the correctional facility in Burg, Saxony-Anhalt. (& copy AP)

Criminal law and its instrument, punishment, have different functions. Punishments are designed to protect certain social goods and values. Today we speak of legal interests that result from a social consensus on particularly significant social interests: life, physical integrity, property are such basic principles of society.

A culpable criminal act that violates such goods is assumed. It forms the starting point for the effect of sanctions. This creates a dual relationship at the same time. The punishment is intended to compensate for the offender's personal guilt and is intended to act preventively so that he does not commit new offenses. This in turn is intended to protect society.


Criminal law in the German Empire and in the Weimar Republic

Behind these basic lines of criminal law lies the duality of criminal law of guilt and criminal law of prevention, which in turn reflect different schools of criminal law. This dispute began at the end of the 19th century. It was a dispute over the further development of the Imperial Criminal Code from 1871, which still forms the basis of current criminal law today.

According to the "classic school of criminal law", punishment is "absolute". It has to be for its own sake, because guilt has to be compensated in the sense of a Kantian categorical imperative. The state criminal claim embodies moral and ethical claims on the person, but is otherwise essentially crime-related.

In contrast, the "modern school of criminal law" pursues a relative criminal theory. Punishment depends on the functions and purposes of prevention. On the one hand, this can be individually tailored to the perpetrator; one also speaks of special prevention: positive in the form of rehabilitation or negative in the form of deterrence. And on the other hand, it can address society as a whole. This so-called general prevention was already discussed at the beginning of the 19th century by the legal scholar Paul Johann Anselm von Feuerbach.

Franz von Liszt and his "Marburg Program"

Around 80 years later, in his "Marburg Program" of 1882, Franz von Liszt, law professor in Marburg and at the same time politician, propagated the "purposeful idea in criminal law". This made von Liszt the leading protagonist of the "modern school of criminal law".

He advocated a reform of criminal law that does not understand punishment solely as a subsequent settlement of guilt, but rather as a socially oriented organizational process. To this end, new sanction options should be introduced. Until then, the only criminal sanctions that existed were imprisonment - in various variations ranging from penitentiary to prison to other forms of detention - and, to a limited extent, the fine.

First discussions about changing the prison system

In contrast, von Liszt made suggestions for a conditional conviction (as a preliminary form of parole) and a reinterpreted fine. This should not only be based on the seriousness of the offense, but also on the financial circumstances of the convicted person. He also called for opportunities for the convicts to pay off such fines through work.

At the same time he saw unlimited imprisonment as a necessity of a "modern criminal law". A legal consequences program should be designed that aligns the penalties with the treatment and security needs of the offender in question. The less dangerous should be left in society, the risky should be taken out of it.

During this phase, the first discussions about a treatment-oriented design of the penal system also developed. This was not regulated uniformly across the empire, but was based on penal orders of the federal states, which had the character of administrative regulations. At that time, the penal system was purely a deterrent to deprivation of liberty in the sense of a custody system.

Development of crime statistics and doctrine of perpetrators

In order to develop ideas for influencing the offender, it was necessary to gain new knowledge about crime as a social phenomenon as a whole and about the offenders. The creation of crime statistics, which began at that time, served the first goal; It is no coincidence that the first "Reich Crime Statistics" also date from 1882.

As a sign of a process of development in criminology, doctrines of perpetrators developed which, according to the rough pattern, differentiated between the ability to reform and the incorrigibility. Empirical knowledge of emerging factual sciences and normative reform demands were closely linked at the time.

In summary, the late 19th century can be described as a kind of founding phase of a concept of "preventive criminal law". With V. Liszt's catchphrase of "social policy as the best criminal policy" clearly describes this conception.

Socially constructive solutions instead of short protections

As can be seen from the first Reich crime statistics, in 1882 a good three quarters (76 percent) of all convictions were made to imprisonment, the minimum duration of which at that time was only one day of imprisonment. A reformed criminal law should change this: Instead of short custody, socially constructive solutions should be found in response to criminal offenses.

However, actual changes in criminal law were a long time coming. It was not until the Weimar Republic that "preventive legislation" was implemented with the fines legislation of 1921/1924 and the first youth court law from 1923, based on the ideas of the "modern school of criminal law".

Juvenile criminal law as a pioneer of reforms

Admittedly, their successes in terms of avoiding prison sentences were quite rapid. As early as 1925, i.e. immediately after the reform, two thirds (66.9 percent) of all convictions in Germany resulted in a fine. Apparently the judges had long waited for a sanction to avoid imposing imprisonment. This could now be applied on the basis of the perpetrator's economic circumstances.

With the first legal drafting of an independent juvenile criminal law, another important step was taken towards a perpetrator-oriented preventive criminal law. Today, juvenile criminal law is even referred to as a pioneer of criminal law reform, because it is there that many of the alternative approaches for the development of criminal law are tried out. In the Youth Courts Act of 1923, for the first time in Germany, there is a legal provision for so-called conditional convictions as an alternative to the enforceable youth penalty.