German Joys

Heidelberg Debate on 'Morality and Criminal Justice'

Here, as promised are the videos of the talk I gave with Robert Blecker in Heidelberg on 4 May 2012. The introduction is by Franz-Julius Morche, one of the organizers of the conference, and the moderation is by Dr. Markus Englerth. Many thanks to both of them, to Robert Blecker, and to the audience, who asked some good questions.

English Libel Tourism

Cory Doctorow highlights a new critique of English libel law:

The Guardian published a long excerpt from Nick Cohen's forthcoming You Can't Read This Book: Censorship in an Age of Freedom, a fantastic-looking book that reveals the dirty truth of English libel law, where "money buys silence" for some of the world's most notorious dictators, thieves, and bad guys. English libel law is so broad that it allows, for example, Russian oligarchs to sue Russian newspapers for punitive sums ("the cost of libel actions in England and Wales is 140 times higher than the European average") in an English court, merely by demonstrating that someone, somewhere in England looked at the paper's website. And yet, the libel law in England and Wales doesn't actually protect people from the most common forms of libelous publication: false declarations of criminal suspicion by the police, false claims of financial irregularities from credit reporting bureaux and false statements in former employers' reference letters are protected unless they can be shown to have been malicious and negligent.

More on the Troy Davis Case

The New York Times quoted me today on European attitudes toward capital punishment:

With passage in 2000 of the Charter of Fundamental Rights, capital punishment was abolished across the European Union. Germany had ended the practice in 1949, Britain in 1969 and France in 1981. Those decisions were far from universally popular at the time, but a wide-ranging consensus has since emerged that capital punishment is a backward and unjust practice, analysts say. Still, a handful of politicians on the fringes of the right still call for a debate over executions.

Doing away with the death penalty is “seen as an established norm of modern society,” said Nicole Bacharan, a French historian and political scientist at the Institute for Political Studies in Paris. Most of the French have come to consider capital punishment as a moral question, Ms. Bacharan said — and one with an unequivocal answer.

It puzzles many Europeans, then, that capital punishment persists in 34 of the 50 American states.

“They don’t understand that Americans believe you can lose your right to life,” said Andrew Hammel, a former Texas defense lawyer who is now an assistant professor at Heinrich Heine University in Düsseldorf, Germany.

The deep cultural influence of the Roman Catholic Church has imbued many Europeans with a belief in “unconditional human dignity,” Mr. Hammel said, a belief that the state “must respect human beings whatever they’ve done.” The Protestant tradition of the United States, by contrast, emphasizes individual responsibility, he said.

In further contrast with the United States, most European judicial systems rely on jurists who are appointed rather than elected. Activists working to abolish the death penalty in the United States often suggest that political considerations affect the thinking of judges and prosecutors.

I spoke to the article's author, Scott Sayare, for about 30 minutes or so. Considering the space limitations, he did a good job of conveying my views. Nevertheless, I thought I'd add a bit of context:

• First, as Sayare suggests, you can't really say that "Europe" has turned against capital punishment. What in fact happened was that European elites -- judges, legislators, professors, senior bureacrats -- turned against capital punishment after World War II, and finally abolished it. And this change of opinion, even among elites, took many decades to solidify. The populations of most Western European countries now rejects capital punishment by pretty solid majorities, but that has only emerged since the mid-1980s or so. The situation is very different in Eastern Europe, where capital punishment was eliminated in the face of widespread public support for it, only because the Council of Europe demanded this step for EU admission. Capital punishment remains popular in Poland, the Czech Republic, and Hungary, and mainstream politicians occasionally there occasionally call for its reinstatement. (Various treaties make this impossible).
• When I talk about the Protestant tradition in the United States, I'm speaking specifically of a Calvinist/Puritan strain of Protestantism that has considerable influence in the States, not of Protestantism in general. Joachim Savelsberg has argued, I think pretty convincingly, that the background cultural influence of American Protestantism has created a way of looking at crime, punishment, and the death penalty that differs from continental European attitudes. Roman Catholic natural law doctrine has developed a strong notion of human dignity that has influenced European legal orders, but which plays a much weaker role in the United States.
• Two caveats to the above observations. First, nobody is arguing that Americans believe in capital punishment because they're Protestants, or Europeans disagree because they're Catholics. Many non-Catholic Europeans who object to almost everything about the Catholic Church are nevertheless influenced by the accumulated deposit of thousands of years of its intellectual influence. Savelsberg is talking about cultural attitudes, the 'background radiation' of society, not about specific religious affiliations.
• It's interesting to speculate about why the population as a whole embraces or rejects capital punishment, but the opinions that really matter are the ones held by people who actually have influence over policy. In almost all continental European societies, there is one criminal code for the whole country. This code defines all major crimes and sets out the relevant punishments. Generally, this criminal code was based on a draft put together by commissions of experts, reviewed by senior bureaucrats, and then passed by the national parliament. The judges and prosecutors who implement the code are all life-tenured civil servants. Ordinary voters have almost no direct influence over criminal justice. Politicians may bloviate about law and order, but this rarely leads to dramatic changes in actual policy.
• In the U.S., by contrast, direct public participation and democratic control over the criminal-justice process is a fundamental part of the legal tradition. Half of all state-court judges are elected, as are almost all state-level prosecutors. Each state has its own criminal code, and they often vary dramatically. Juries participate in almost every criminal case that comes to trial (although about 90% of cases are settled by a plea-bargain). If the politicians of a certain state don't get tough enough on crime, citizens can create new crimes, or re-introduce capital punishment, by direct popular referendum. The state of Oregon, for instance, got rid of capital punishment by a direct popular referendum in 1964, and then brought it back in 1984. This level of direct popular control over criminal-justice policy would be unthinkable in almost every country on the European continent.

Some American perspectives from Andrew Sullivan here.

The Mouse Goes up the River

I was just watching Die Sendung mit der Maus (The Show with the Mouse) this morning while cleaning house a bit. This is the most famous German childrens' television shows, broadcast every Sunday morning since 1971 on one of the main public-television stations. The star of the show is a pudgy burnt-orange mouse whose eyes click when he blinks them. He plays in silent comic vignettes. Between the vignettes there are real-world reports aimed at children.

As befits a public television station with an educational mission, the reporting segments are pretty matter-of-fact and highlight unflashy subjects like streetcar repair, how to build an Airbus, forestry, construction, jogging, and the like. This time around, to my amusement, the reporter Ralph took the kiddies inside a prison (g). The reporter Ralph, a genial fellow in his 20s with square black glasses, was first led through several big metal doors and fences to get inside the prison. Once inside, he was given a tour of the inmates' cells, the visiting room, meetings with social workers, the telephone area, and a few other places. We observed the nightly ritual of 'Umschluss', in which inmates are allowed to visit their friends' rooms (with the doors locked behind them) for a game of cards or a chat.

We saw an interview with Johnny, a bald 21-year-old serving a three-year sentence, which is long by German standards. Johnny describes his life in prison, tells us that he misses his family most of all, and wishes he had listened to the advice of friends and family, who had told him to clean up his act. When it comes time for Johnny to sweep his cell, the reporter helps. At the end of the interview, Ralph shakes Johnny's hand, wishes him good luck, and expresses a hope that next time, they'll meet in a more pleasant place. They then show him being escorted out of the prison.

A month or so I was at an academic conference, trying to explain German attitudes on criminal punishment to American scholars. I pointed out that state television is still important here, and programming on public channels is controlled by a certain set of guidelines and presumptions. The Show with the Mouse fits right in. There was no ominous music, no 'dramatizations' of the crime, no references to 'predators'. The millions of kids who watched this program saw a prisoner being treated with respect and even warmth by the reporter. The prison was portrayed as a place with strict rules where your freedom is limited, but where you can also socialize, take classes, and greet visitors from the outside world. Above all, it was made clear that all the people in this prison are going to get out within a few years and rejoin society, and this was portrayed as a normal and even good thing.

Of course, this is certainly not the only picture of crime and punishment German children are exposed to as they grow up -- there are tabloid newspapers everywhere in Germany, after all. But the Maus show today at least can act as a counterweight to more exploitative portrayals of crime.

German Rule of Law

The World Justice Project has just released its comparative report (pdf) on the rule of law worldwide. Here are summaries of the results for the U.S., Germany, and Italy:

The United States obtains high marks in most dimensions of the rule of law. The country stands out for its well-functioning system of checks and balances and for its good results in guaranteeing civil liberties among its people, including the rights of association, opinion and expression, religion, and petition. The civil justice system is independent and free of undue influence, but it remains inaccessible to disadvantaged groups (ranking 21st). Legal assistance is expensive or unavailable (ranking 52nd), and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil courts system remains significant (see box 4). In addition, there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts.

...

Germany is one of the world’s leaders in many dimensions of the rule of law. Government accountability is strong (ranking 5th out of 66 countries) and corruption is minimal (ranking 12th). The country’s civil justice system ranks 2nd out of all countries, which is characterized by the affordability of attorneys, accessibility and efficiency of courts, and lack of undue influence. Police discrimination against foreigners, however, is perceived to occur.

...

Italy is the weakest performer in the Western Europe and North America region countries measured by the Index, although there are significant variations across the three cities polled (Rome, Milan, and
Naples). Out of 12 countries covered in the region, Italy ranks 12th in seven of the eight rule of law
dimensions. Corruption within the judiciary and impunity of government officials - where the
country ranks 22nd and 23rd, respectively - both constitute significant institutional weaknesses. Italy
ranks last among high-income countries in the areas of open government, order and security, and access to civil justice. Lack of government accountability, delays in administrative and judicial decisions, police discrimination against foreigners, and deficient legal security, are also sources of concern. On the other hand, Italy earns high marks in the areas of judicial independence and protection of fundamental rights.

One problem with the U.S. is surely the practice of contingency fee lawsuits. Most countries regulate attorneys' fees and have some sort of legal aid scheme (Germany has quite a complex law on attorneys' fees (g)). In the U.S., lawyers regulate themselves in state-level bar associations, and as you might expect for an industry left to regulate itself, the only restriction on how much lawyers can charge is whether the fee is 'reasonable'. In plaintiffs' personal-injury lawsuits, the typical arrangement is a contingency fee, in which the lawyer takes 30-40 percent of the total recovery if he wins the lawsuit, and nothing if he doesn't.

As my German students always point out, 'If the jury decided $100,000 was the right amount to compensate the victim, why does the lawyer get to take 40% of that amount as payment? Doesn't it belong to the plaintiff? Why would you create a system in which the lawyer only gets paid by siphoning off money that the jury has decided the plaintiff should be getting himself or herself?' Very good questions all, and probably one of the factors that harms the U.S.'s ranking in the WJP study. One answer is that juries appear to understand the plaintiff won't be getting all of the money, and adjust their verdicts upward for precisely that reason. But that still doesn't address the fundamental problem, which is that lawyers are being compensated from a pool of money that, officially, has been awarded to their clients.

DSK and the Perp Walk

The French find the perp walk, a New York tradition in which high-profile defendants are forced to walk in handcuffs in front of reporters with cameras, to be undignified:

Though horrified by those alleged crimes, the French press and political elite on Monday seemed perhaps more scandalized still by the images of Mr. Strauss-Kahn’s brusque treatment by the New York police, and his exposure in the American media.

“I found that image to be incredibly brutal, violent and cruel,” the former justice minister Elisabeth Guigou told France-Info radio on Monday, referring to widely published photographs of a beleaguered-looking Mr. Strauss-Kahn, handcuffed and led by several New York police officers. “I am happy that we do not have the same judicial system.”

As justice minister, Ms. Guigou, now a parliamentarian, oversaw the passage of a law prohibiting the publication of photographs of handcuffed criminal suspects.

“I don’t see what the publication of images of this type adds,” she said.

Asked about Ms. Guigou’s remarks, Eva Joly, a well-known French magistrate who once brought charges against Mr. Strauss-Kahn for corruption (of which he was later acquitted), agreed that “these are very violent images.” Ms. Joly, who is now a leader of the French Green Party expected to run in next year’s presidential election, added that this sort of media spectacle might be “more violent for a celebrity than for an unknown person,” but noted that the American justice system “doesn’t distinguish between the director of the I.M.F. and any other suspect. It’s the idea of equal rights.” *

Ms. Joly also suggested that the ‘perp walk’ images of Mr. Strauss-Kahn in handcuffs were a product of a justice system quote unlike the French one, because American prosecutors always needs to think about convincing a jury of a suspect’s guilt.

If there is a trial in this case, it will shed fascinating light on how Europeans perceive the American criminal justice system. The notion of intentionally forcing criminal suspects to appear in public in handcuffs and accompanied by police is completely inconsistent with the notions of dignity, privacy and fairness in Continental criminal proceedings. And it's not just a matter of different standards for the famous and powerful -- in France, neither rich nor poor defendants are intentionally forced into a public perp walk before their trials. For the record, I also find the 'perp walk' to be objectionable -- as Guigou says in the above article, this humiliating ritual doesn't serve any informative purpose, and undermines the presumption of innocence. More thoughts here.

Racial Bias in German Justice

To add some more context to the post about WDR5'S flub, I should note that the mere fact that certain groups are overrrepresented in a country's or state's prisons naturally doesn't establish bias -- although I would argue that it's an indicator of potential problems that should warrant further study.

Establishing discrimination against group X requires eliminating tons of confounding variables, including:

• Do members of group X disproportionately commit certain kinds of crimes? Is there a differential pattern of arrest or enforcement: i.e., members of group X get arrested more often because they can't afford cars or private residences and therefore conduct their illegal activities in public?
• Do prosecutors make different charging decisions against members of group X? Do they cut more or fewer deals with members of group X?
• Are members of group X more or less likely to be diverted to a non-custodial sentence?
• Are the prison sentences handed down to members of group X longer or shorter than the sentences handed out by majority-group members for the same crime?
• Do members of group X get released from prison earlier or later than the majority group? If later, is this because they offend more in prison? Is the decision to release prisoners early subject to discretion?

There's been a massive effort in the U.S. to design studies that control for as many of these variables as possible. To get an idea of just how intensely this subject has been addressed, just look at this discussion. As for death row, my impression of the study results is that there's some evidence of discrimination based on the race of the defendant, but it's not glaring. Blacks are disproportionately represented on death row, but they're also disproportionately represented among the group of people who could theoretically end up on death row -- that is, people who have committed homicide. In fact, black arrest rates for most crimes are significantly higher than arrest rates among whites in the U.S.

So, to put it simply, if 40 percent of the people committing death-penalty eligible offenses (aggravated intentional murder) are black, the mere fact that 40 percent of the people on death row are black isn't, by itself, evidence of discrimination. You have to dig deeper. There is clearer evidence based on the race of the victim. That is, holding other things equal, you're more likely to be sentenced to death for killing a white person than for killing a minority. Once again, the effects aren't necessarily all that strong, but they seem fairly robust.

Some of the evidence of racial discrimination is certainly an artifact of income inequality. Almost everyone who ends up on death row was unable to afford a private attorney, and had to rely on public defenders. And given that blacks are much poorer than whites, they are that much more unlikely to be able to afford private legal assistance, and that much more likely to get the worst outcome in the penal system for someone in their position.

As is so often the case, the German media's careful focus on social problems in America is matched by a curious disinterest in whether the same problem exists in Germany. According to page 96 of this report from the Federal Justice Ministry (pdf, g), 22.2% of the people in German prisons are foreigners. This is certainly higher than their representation in the population, and it doesn't include a much larger number of people who might be targets of discrimination -- people who have German citizenship, but who have foreign names or non-white skin. Google searches for Diskriminierung & Strafjustiz get you some speeches, statements, and articles, many not even on-point. What you don't get are careful, well-constructed statistical analyses. The press and the scholarly community in fact seem utterly disinterested in the question of whether there is racial discrimination in German courts.

Why might this be? Here are a few suggested explanations, feel free to dispute them or add others of your own in comments:

• Blind faith in German criminal justice and/or lack of knowledge about exactly how it operates.
• There can't be discrimination in Germany because discrimination by government officials is prohibited by the German Basic Law, and therefore doesn't exist.
• If the press focusses too much on the fact that foreigners are disproportionately represented in German prisons, right-wingers will use the fact to argue that they're inherently violent and/or should be deported.
• Access to information: American criminal proceedings are public and easy to study, most German ones are not, meaning that creating a database would mean endless hassles getting access to data.
• A desire not to anger local judges and prosecutors by accusations of discrimination, thereby endangering future leaks/tips/cooperation/student placements.
• Class solidarity: Journalists share similar backgrounds with German judges and prosecutors, and don't want to be seen as questioning the motives of 'people like us'.
• There are no powerful, nationwide lobbying and advocacy groups working to protect the rights of German minorities who might have the resources and the motivation to fund discrimination studies.

German Journalistic Complacency, Volume XXVIII

Occasionally, I survey German coverage of the death penalty in America, mostly for professional purposes. What strikes me again and again is how utterly casual standards of fact-checking are -- at least when it comes to popular assumptions of the German bourgeois elite about American society. Case in point: As we all (think we) know, the U.S. justice system is profoundly racist. Therefore, we may assume that there are "only a very few" (g) white prisoners on death row in Florida, as this summary of a West German Radio (WDR5) feature assures us.

According to page 51 of this authoritative Death Row USA Report (pdf) there are actually 221 white prisoners on Florida's death row, out of 398 prisoners total. There are 135 black prisoners, 35 Latino, and 2 Asian -- so white people make up 55% of Florida's death row. This shows a clear overrepresentation of black prisoners compared to their number in the Florida population (15-16%). However, they're not particularly overrepresented as homicide offenders. As these 2009 data for the entire U.S. show, 37.4% of all homicide offenders were black, 33.5% white.*

I don't mean to single out West German Radio, whose programming I generally find pretty good. You'll see precisely the same kinds of gross errors in all other German media outlets, and they all spring from the same problem: complacency. After all, the information I've presented took me about 5 minutes to collect. The problem is, nobody thought to do the same thing before making a basic, and completely wrong, factual claim.

A Summary of My Book

For those few remaining holdouts who haven't read my book yet, William W. Berry III of the University of Mississippi School of Law has recently uploaded a paper to SSRN that includes (among other things) a good summary of my main arguments. I haven't read the whole thing yet, so I don't yet know Berry's take, but I thought I'd put a link up all the same.

A Debate on Freedom in the U.S. and Europe

Derives from the comments to a post by Ilya Somin about the French Conseil Constitutionnel's decision to uphold the burqa ban. Somin comments:

I am no expert on French constitutional law, so I have little to say about the legal correctness of the ruling....

I will say, however, that if the decision is not mistaken, it is a serious indictment of the French constitution that its protection of religious and personal freedom is so weak. The justifications offered by the court for a massive infringement on the religious practices of hundreds of thousands of French Muslims [update: probably “only” thousands, depending on how many actually wear veils and what kinds of headgear are actually covered by the ban] are at best extremely dubious. For example, it is simply not true that women who voluntarily wear veils necessarily end up in a “condition of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.” Right here where I live in northern Virginia, there is a substantial Muslim population and many (though by no means all) all of the Muslim women wear veils. That doesn’t prevent them from having jobs outside the home, getting an education, and participating in politics and government in much the same way as unveiled women do. Some other religious groups, such as Orthodox Jews, also impose fairly strict requirements of modest dress on women. They too are not thereby blocked from full participation in society.

European Muslims are, on average, less well integrated into the economies and societies of their countries than American ones are. Nonetheless, it is difficult to believe that European Muslim women’s full participation in society is somehow precluded by wearing veils. The French Constitutional Council offers no evidence whatsoever to the contrary.

And from the comments, a poster rejoins with excerpts from an article called "The German Idea of Freedom" (pdf) by Edward J. Eberle. Here's the comment from 'Positroll' (great name):

“The American constitutional vision is centered around human liberty, which is secured through a focus on governmental structure grounded in the separation of powers ... Pursuant to this constitutional scheme, liberty means essentially the freedom to pursue one’s own vision in life, as one chooses. The American Constitution posits no particular normative order that government must realize or people must live within.”

In the European context

“Personality rights center on development of human capacity and protection of a person’s interior life, made concrete through protections like control over information personal to an individual, such as inquiry into habits and activities and rightful portrayal, rightful quotation and rightful honor of a person. A central focus of German rights is preservation of the integrity and security of a person.
Another difference is that rights are coupled with duties, an obligation common in European constitutional orders but foreign to the American constitutional scheme.
The idea of coupling rights with duties reflects, again, a value-ordered constitution, as compared to a value-neutral one.”

What the French consitutional court is saying is that being a citizen (and a majore ad minus the same applies to guests living in the country) comes with the duty to take part in society. Similarly, the German consitutional court held in another context:
“The image of man in the Basic Law is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favor of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing upon a person’s individual value.”

That’s why imO trying to measure the French decision with an American yardstick won’t do it justice ...