German Joys

Criminal Justice: Eternally, Internationally Perfect

Death penalty supporter Antonin Scalia, United States, 2006:

One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.

[Source: Scalia's opinion in the Supreme Court case Kansas v. Marsh]

Death penalty supporter Fritz Neumayer, Free Democrat Party, Germany 1950:

Against arguments concerning the possibility of judicial error and the irreparability of an improper execution, [Neumayer] pointed to the fact that the assistance provided by science and criminal statistics was so far advanced that the possibility of an wrongful conviction on the basis of circumstantial evidence could only be anticipated in extremely rare cases.

[Source: Paraphrase of Neumayer's arguments during a parliamentary debate on the re-introduction of the death penalty in Germany]

Death penalty supporter Johann von Kloreiniger, Wiesensteig, Germany, 1563:

Verily I do say and atteste, that the Possibilitie that any Person has been put to Death for the horrid Crime of being a Witch, although they were not such, is now but a Trifle. The carefull and scientifick Manner in which we Compelle the Foul Beastes of the Devil to Confess their Hideous Crimes against Nature, using Thumbscrews, Half-Drowning, and Hot Pincers, combined with the Guidance of Divine Providence, permits us to exclude all Doubte Before Ordaining the Drawinge & Quarteringe of these Shamefull and Repulsive Whores of Satan.

[Source: The Astonishinge and Truthfulle Account of My Humble Years of Service as Chief Publick Prosecutor to my Most Noble and Righteous Lord the Margrave of Southeasterne Bavaria, as Invented and dutifullie Transcribed by Andrew von Hammell, Esq.]

A Tale of Two Chief Executives

German Federal President Horst Koehler has just decided (G) to deny clemency (Gnade) to the imprisoned RAF terrorist Christian Klar. Before doing so, he collected statements from judges, attorneys and prison officials, as well as a psychological evaluation of Klar. He also spoke in person to the victims' families, judges, officials, prosecutors, and finally, on May 4, he flew to the prison in which Klar is being held to speak to Klar himself. Amid all the political controversy surrounding this high-profile case, I have yet to see anyone accused Koehler of not taking it seriously enough. In fact, he's being criticized by some conservative parties for having spoken to Klar, thus supposedly lending the old terrorist undeserved legitimacy.

Am I alone in thinking that a cruel but informative comparison practically begs to be drawn here?

During his time as Governor of Texas, President Bush granted clemency to a death-row inmate once (Henry Lee Lucas, whom a state investigation had concluded was innocent of the crime that sent him to death row) and denied it 152 times, resulting in 152 executions. It is true that a state agency called the Board of Pardons and Paroles reaches a decision on clemency applications first -- a fact commonly cited to absolve Bush of responsibility. However, the members of the board are political appointees. If the Governor makes it clear he has a strong opinion what should happen to a particular condemned inmate, they will vote with him.

Like all politicians, Bush claimed to agonize over death row clemency applications. Did he? Well, he read a 3-page memo prepared by his legal counsel, Alberto Gonzales. Yes, that's the same hapless, bumbling Alberto Gonzales who is embroiled in a scandal over the firing of a group of U.S. attorneys. The same Gonzales who recently staggered out of a humiliating Congressional hearing bleeding profusely from every orifice, so to speak. You could call him the Inspector Clouseau of the executive branch. And what about those fantastic memos Gonzales produced? According to a 2003 study published in the Atlantic Monthly:

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Why Did Germany Abolish the Death Penalty?

It's common knowledge in Germany that the inclusion of Article 102 of the Grundgesetz (Basic Law), which abolishes the death penalty, was motivated by disgust at the excessive use of the death penalty in Germany by the National Socialist regime. During the twelve years of Nazi dictatorship, over 30,000 death sentences were handed down -- in addition to the mass extermination directed at 'undesirable' populations. Dozens of Germans have recited to me the some version of the standard sound-bite concerning the Parliamentary Council's 1949 decision to call for the abolition of the death penalty in the Basic Law: "As the extent of Nazi atrocities and abuse of the death penalty became clear, everyone was horrified, and the founders of the Federal Republic of Germany decided the State could never again be allowed the power to kill."

In June of 2005, however, American journalist Charles Lane, who covers the U.S. Supreme Court for the Washington Post, set off a minor earthquake by writing a piece called "The Paradoxes of a Death Penalty Stance." The piece began: "In the debate between Europe and the United States over the death penalty, no country is more vocal than Germany. German media regularly decry executions in Texas." Then, drawing on a Richard J. Evans' monumental book Rituals of Retribution: Capital Punishment in Germany 1600-1978, noted that the original motion to include what later became Article 102 in the Basic Law was tabled by Hans-Christoph Seebohm, a delegate from a right-wing party whose main intention was not to abolish the death penalty for ordinary killers, but to try to hinder the execution of Nazi war criminals by the Allied powers still controlling Germany at that time: "...Seebohm[] surprised everyone by proposing to get rid of the death penalty. Seebohm, who ran various industrial enterprises under the Nazis, led the tiny, far-right German Party -- which also advocated using 'German Reich' instead of 'Federal Republic.'" Lane continues:

Both Social Democrats and Christian Democrats initially rejected the Seebohm initiative but gradually began to see its advantages. To the Social Democrats, it offered right-wing political cover for an idea they [supported but] dared not pursue on their own. And for more than half of the Christian Democrat delegates, Evans reports, the political advantages of trying to shield Nazi war criminals trumped their belief in the death penalty for ordinary murder cases. Social Democratic arguments about turning the page on Nazism, belatedly made, were not decisive. Rather, writes Evans, "only the hope of being able to save Nazi criminals from the gallows . . . persuaded conservative deputies from the German Party and the Christian Democrats to cast their votes in favor of abolition in sufficient numbers to secure its anchorage in the Basic Law. Had it merely been the question of common homicide that was at issue, the vote would never have been passed."

The piece also appeared in German, and drew rather defensive responses from some German readers (G) of the Tagesspiegel newspaper. One of them started her letter: "There's no doubt that Charles Lane, as an American faithful to the system, is arguing for the death penalty. The fact that the Germans are against it is an annoyance to him,"  No proof is provided for either of these assertions, and I have been unable to find anything in the public record on whether Charles Lane personally supports the death penalty. (Most Washington journalists are left-of-center in American terms, and therefore likely to privately opposed the death penalty. Generally, they keep their views on controversial public issues to themselves as long as they are working journalists). Another reader asks whether Lane was trying to "disclaim the moral integrity of the German government, of Germans in general, and of me," and points out that the mere fact that someone opposed the death penalty for less than admirable reasons doesn't make it the wrong position to take. Nothing in Lane's piece, for that matter, suggests otherwise.

International Treaties -- How Far Apart Are We?

This blog is all about cutting through the hype, so let me take that approach to one issue that makes the news now and again in Germany.

Let's say you're a foreign national in country X, and the police arrest you. An international treaty called the Vienna Convention on Consular Relations provides that, upon request, you must be given immediate access to your consulate. They can help you understand the legal system of the country you are in, and perhaps assist you in finding proper legal representation.

Many of the foreign nationals on in US prisons were not told of their right to contact their consulate when they were charged with a crime. Usually, this is the result of oversight; most law enforcement in the U.S. is local, and it's likely that many police officers in Waxahachie, Texas or Klamath Falls, Oregon has never heard of the Vienna Convention on Consular Relations. It's also sometimes hard to actually determine whether someone in police custody is a foreign national, especially if they lie about this fact because they are illegally in the USA and fear being deported to their home country.

Germans are likely to recognize the Vienna Convention (Wiener Abkommen, in everyday language) because it was big news not so long ago. In 1999, Germany sued the United States before the International Court of Justice (ICJ) on behalf of two German nationals, Walter and Karl LaGrand, who had been convicted and sentenced to death in Arizona for 1982 bank robbery in which one man was killed and a woman severely injured. The ICJ issued an order requesting the United States to stop the executions, but the State of Arizona concluded that this order was not binding upon its own justice system, and executed the brothers even before the ICJ had issued its final judgment. The decision itself is somewhat complex, you can read a summary of the case here. The case was extremely controversial; German Green Claudia Roth condemned (G) the United States as "arrogant" and claimed it was setting itself above international law.

I'm not going to get into a discussion of the merits of the LaGrand case (though they're quite interesting). I mention it simply to show how often the Vienna Convention often serves as a focus of international criticism of the United States, especially when it is violated in a death penalty case. Paraguay and Mexico have also sued the U.S. on behalf of their nationals before the ICJ and received judgments favorable to their legal positions. To avoid more of these embarrasing judgments, the President withdrew the United States from the jurisdiction of the ICJ on March 7, 2005. (For the record, I disagree with that decision). This means that the U.S. is still bound to obey the Vienna Convention, but cannot be sued in front of the ICJ for a violation.

If you look behind the headlines, though, the issues raise by the Vienna Conventions turn out to pose complex problems for all countries, among them the following:

1. Does the Vienna Convention give individuals rights? That is, can you sue personally in front of a court of law when you are not given the proper warnings? Perhaps the Vienna Convention doesn't give persons specific rights, in which case a violation can only be resolved through diplomatic means (i.e., a letter of protest, or a visit by a consul).
2. What's the remedy? Say you confess to a crime after not receiving your Vienna Convention warning. Can that confession be used against you in a court of law, or must it be excluded from later judicial proceedings?
3. What if you don't raise the issue in time? What happens if you don't find out about the Vienna Convention violation until long after the trial, when you no longer have a right to file an appeal? Should international law take precedence over procedural rules, common in most legal systems, that require prisoners to raise all of their legal claims as early in the process as possible?
4. Who bears responsibility for respecting the Convention? In countries like the United States, which have extremely decentralized criminal justice systems, the national government (which is the one that signs treaties) has little influence on local law enforcment. Every state in the U.S. has its own criminal code, and 98% of executions are carried out under the law of specific states. In these cases, the federal government has little power to interfere with the legal process in one particular state, and the President has no power at all. (Very few Europeans, in my experience, understand this fact).

The 'Americanization' of German Criminal Justice?

A while ago I went to a speech by an experienced German criminal-defense attorney. He was talking to young German lawyers thinking of entering this corner of the legal profession. I expected plenty of amusing war stories, and got them. What I didn't expect was to hear so many familiar things: most of what the lawyer said about the German criminal justice system could conceivably have been said by an American criminal defense attorney.

A bit of background. Among people who study criminal justice systems, there's a basic template that explains the difference between European and American criminal justice. It goes like this:

"Adversarial" America/England: A criminal trial is a rarity; since over 90% of all criminal cases are resolved through plea bargains.When a criminal trial does take place, the defendant usually denies guilt (regardless of whether he is guilty), and the criminal defense attorney tries, using all legal tactics, to prevent inculpatory evidence from being introducted against his client. Much depends on the whether the defendant can afford a good defense attorney, since the judge plays a mainly passive role. The attorney's task is to vigorously represent his client's interests, not to help the justice system achieve "the right" result. Therefore, as long as the defense attorney does not lie to the court, he or she is permitted to represent a guilty client.

'Interesting Work is a Strong Drag on Profits'

First, many thanks to Ed Philp for taking us deep into the bowels of coal-mining country. One day, when I get around to it, I'll post about a visit a former coal-processing plant that's been turned into the Red Dot Design Center in Essen. Most of the original machinery's been left in place, so you walking along steel catwalks past gigantic, rusting former moronic acid catalytic tanks (or whatever they are), then enter a sort of open floating cube attached to the side of the tank, dozens of yards above the plant floor, filled with oddly-shaped teakettles or shiny, curvilinear prototype scooters from 1983. It's weird, but it works.

Speaking of gung-ho people putting in lots of extra hours on the job, what about young lawyers working at large law firms? Every year, I see dozens of fresh-faced youngsters rejoice when they get an offer to go work at one of these places. Every year I warn them to think very carefully before accepting these offers. And every year I meet people who accepted one of those Faustian bargains job offers a couple of years ago. Virtually all of them regret it.

26-year-old lawyers making $135,000 a year come in rather low in my personal ranking of oppressed populations whose fate deserves close study, but David T. Henderson and William T. Zaring, two American law professors, disagree. They've developed a scientific model of why so many young associates hate their jobs.. In this paper, [hat-tip again to the Philpster] researchers constructed a statistical model to find out why so many young lawyers at big law firms hate their jobs. They attempted to measure whether the huge amounts of money these young lawyers earn could "make up" for the fact that they had to spend long hours, under a great deal of pressure, on boring, routine tasks. The result:

[A]fter controlling for all the variables in the model, interesting work appeared to be a strong drag on profits.... Thus, it appears that steering associates into highly specialized and repetitive (read: boring) niche practice may be a lucrative management strategy. Similarly, law firms seem to prosper when associates report a high likelihood of leaving the firm in the near future. Further, the results of model suggest that there is no relationship between firm profits and the providing associates with feedback, training and guidance, or a family friendly work environment. In short, if a firm is sufficiently prestigious, it appears that it can safely gravitate toward the sweatshop model.

Note that the authors are studying American law firms here. However, as the globalization of the legal profession continues, and American or British law firms continue to out-compete or take over their European counterparts, this model of legal practice will become more and more the rule in Germany. Unless, of course, people do something about that.

Non-Bear Shaped Gummi Bears

Sex toys have been a topic on this blog before, albeit in the context of taxation. Now they're back: a trip to the store turns into a journey of erotic self-discovery when Harald Martenstein discovers (G) that his local department store now sells sex toys.

Special Offer

Harald Martenstein discovers an “erotic goods” section in the department store

I’m not really a lady. That’s why I rarely visit the ladies’ underwear department in the Karstadt department store. However, it came to pass one day that I got lost. I wanted to go to the CD section. Do not buy the so-called new Beatles CD Love, by the way, it’s horrible. I didn’t find the CD-section. Instead, I was suddenly standing before a gigantic, knobby dildo. The term dildo denotes a stylized recreation of the male reproductive organ. It is designed for leisure pursuits. There are ones with and without motors, just like with boats and two-wheelers. I explain the word because once, when I was a young man, I had to admit at a party that I didn’t know the word, and that was embarrassing. I actually thought “dildo” was that large, extinct Australian bird. It also wouldn’t be such a bad name, when you come to think of it. Dildo DiCaprio. Dildo Jetengine. Suddenly it came to be that if Ildikó von Kürthy tried to pep up a Franz Kafka novel with sex scenes, you would have something that would be about as patchy as the Love CD.

German Joys Uncut: Michael Buback on RAF Terrorism

The debate about the possible early release of RAF terrorists Brigitte Mohnhaupt and Christan Klar intensifies. One recent contribution is an essay in the Sueddeutsche Zeitung written by Michael Buback. He is the son of Siegfried Buback, former Attorney General of Germany, who was murdered by RAF terrorists in 1977. The piece is called (in my translation) Debate about Strange, Distant Murderers (G). My translation, presented complete and unedited, appears below.

Debate About Strange, Distant Murderers

Why it is almost unimportant for a survivor whether an RAF terrorist remains in custody or is freed. An essay by Michael Buback, the son of Attorney General Siegfried Buback, murdered in 1977.

It is entirely proper that relatives of the victims do not participate in decisions on clemency for murderers. My essay could actually be limited to this one sentence. If, however, I write further, I do so because I have been repeatedly implored to give a detailed statement of my position and because I belong to the ever-diminishing group of people who still have strong memories of the events of 30 years ago.

To be sure, one hardly needs an especially good memory here. The event is chiseled into my memory, as it surely is with most people who have lost relatives to crime.

One particularity of the killing of my father is that those who murdered him and two members of his retinue, Georg Wurster and Wolfgang Göbel, did not know their victims personally.  They defined the Attorney General as evil by virtue of his function in a state that they rejected and hated. In thier blind fanaticism, fathomless arrogance, and extreme cruelty, they chose him for death according to their perverted standards, along with members of his security detail just as innocent as he.

The Assassination was Aimed at the State

The assassination was primarily aimed at the Federal Republic of Germany, whose leading criminal-justice officials were marked to be “blown away” by the terrorists. Perhaps the terrorists’ hate for this Attorney General was increased by the fact that he recognized the enormous dangers of terrorism early (which one would, of course, expect from an official with so much experience in the investigation of crimes against the state) and gave clear warning of the possible dangers.

Later events show how correct his warnings were. We now see the ubiquitous threat of terrorism almost daily in news programs. We are confronted with the consequences of terrorist violence every time we board a plane. Leading politicians in free, democratic countries are forced to live subject to intensive security measures.

They must often work in areas screened-off from the public, behind security fences and protective walls. Sometimes, in fact, the buildings from outside are so fortress-like that they resemble buildings intended for prisoners. The fact that there are ever more terrorists whose fanaticism drives them to take their own lives in addition to those of strangers makes the planning and execution of measures against terrorist brutality especially difficult.

Freedom for Mohnhaupt and Klar?

Yesterday on my local radio station there was a call-in show on the future of two convicted terrorists of the Rote Armee Fraktion (RAF). The RAF existed for almost thirty years, but its heyday was in the late 1970s, and especially in 1977, when the group staged a series of kidnappings an assassinations that caused a serious crisis atmosphere in Germany. This period was known as the "German Autumn."

Now two of the most infamous RAF prisoners, Brigitte Mohnhaupt (looking icily suave in the 'man'-hunt photo at left) and Christian Klar, might soon be released (G) after serving twenty-four years behind bars. Mohnhaupt, one of the leaders of the German Autumn attacks, is serving a sentence of five terms of life imprisonment plus fifteen years. She'll have a hearing before the Fifth Criminal Senate of the Stuttgart Regional Court on January 22 to determine whether she should be released early on parole. Klar, convicted of nine counts of murder and 11 counts of attempted murder, submitted his application for executive clemency years ago, when Johannes Rau was the President of Germany. Rau's successor, Horst Koehler, has signaled he might be near a decision.

Back in the day, these two were ideologically disciplined, stone-cold 'urban guerrillas', capable of planning and carrying out  sophisticated operations against heavily-guarded state and industry targets. Executing their targets, if necessary, was no problem to them, although not all of the murders charged to their account were execution-style.

Natascha Adamowsky on Computer Games

Everyone's talking about computer games! Regulating or outlawing them, that is. American politicians are falling over themselves to criticize the games; Illinois even passed a law (the Safe Games Illinois Act) calling for mandatory labeling of computer games. German politicians have also stepped into the fray, after some violent incidents in Germay linked to young men who played violent video games. Conservative politician and Bavarian Interior Minister Guenther Beckstein has even proposed (G) sentencing makers of games that "glorify violence" to a year in prison.

Die Welt recently interviewed (G) Natascha Adamowsky, an academic in Berlin who studies the history of culture and of games. Violence has always been closely linked to games, she says. Video games are a step forward compared to past centuries, where competition produced piles of real, not just virtual, corpses. She's not averse to regulating the content of the nastiest specimens, but also believes that some of the criticism of violent computer games is driven by general Luddism and computerphobic intellectuals' inherent fear of new technologies. A few excerpts of her interview, translated by yours truly:

WELT.de: How do you react to the word “Killer Games”?

Natascha Adamowsky: It’s an understandable moral reaction to say that there should be no killing in games. We live in a culture in which we reject killing other people even in games. However, history provides many examples of games in which one or the other player does not survive. A game is not a morality play.

WELT.de: For example, the Colosseum in Rome?

Adamowsky: Or among the Eskimos in Greenland, who had plenty of fun twisting each others’ ears off. Or medieval football games, where villages played against each other and beat each other to a pulp. Or during the classical age in Central America, in which ritual demanded that the losing team be killed after the game.  There are also completely modern deadly games, such as when young people bet on how long they can drive on the wrong side of the road. The American ethnologist Clifford Geertz called this “deep play” – a game in which your own life is at stake. But the classic children’s game, where children “shoot” each other with sticks and yell “Bang! Boom! [in German: „Peng! Puff!“] you’re dead!“ can be seen on every playground.

Germany Copies America, Restricts Indoor Smoking

As a non-smoker for going on four months now, I'm pleased to see that the Grand Coalition running Germany has agreed on a smoking ban for almost all public places:

Smoking in smoking in theatres, cinemas, hospitals and schools will be banned in a drive to toughen some of the most lax smoking rules in western Europe. It will also be banned in all forms of public transport.

...

Health Minister Ulla Schmidt called the compromise a step in the right direction. "This is an enormous advance for the protection of non-smokers and for health protection in Germany," she said, adding that she hoped the coalition parties' broader parliamentary groups would accept the deal.

Nearly a third of all German adults smoke regularly and close to 140,000 die every year from tobacco-related illnesses -- far more than from traffic accidents, alcohol, drugs and AIDS combined.

The ban doesn't apply to bars and pubs, and apparently restaurants will be allowed to maintain separate smoking areas. I don't have a problem with somebody smoking in my presence, so long as there's a little air circulation. But ay, there's the rub: in Germany, "a little air circulation" is called a "draft," and, to quote Spiegel English: "A lot of Germans don't like drafts. Some even seem to have an irrational fear of moving air, believing it can cause pneumonia, flu, colds, clogged arteries and just about every malady imaginable." Thus, go into an average bar here during the winter and you'll see visible, choking clouds of second-hand smoke that have been resting in the motionless air for hours (if not years). Sometimes I have to wash my clothes twice to get the stinging, acrid tang of used tobacco out of them.

So, as far as this goes, it's probably a good idea, and I congratulate the Grosse Koalition.

But now, if you don't mind, I'd like to rant at German journalists for a few short moments. One of the most tiresome stereotypes around is of those "puritanical" Americans who passed laws banning smoking in public places. Throughout the 1980s and 1990s -- that is, before European governments began to ban indoor smoking themselves -- lazy German journalists, on slow news days, ridiculed America every time some city or state in the U.S. moved to restrict smoking. As this Tagesspiegel article put it (G) two years ago, "for years, Europans mocked the American example. But now, the old continent is following the New World...in ever-faster steps." Now, of course, these journalists sometimes quoted the odd German doctor saying: "Hey, this is actually not such a bad idea." But that was rare; the snide putdowns, if placed end-to-end, would reach to Saturn and back.

Suddenly, it turns out that banning smoking in enclosed public spaces was not some ludicrous paroxysm of American puritanism, but rather a sensible policy that has saved thousands of lives and millions of dollars in medical expenses. Something Europe, perhaps, should have started doing decades ago. All this time, snide journalists did a disservice to their readers by treating the smoking ban as nothing more than an occasion to mock America, rather than explore potentially sound public-policy idea. (Especially for a country like Germany, which has to reform its health system every few years to keep it financially viable.)

Therefore, to every European journalist who trotted out this lazy cliché all these years: you condescending snobs are hereby invited to come to Düsseldorf and kiss my big fat American ass.

There, I'm glad I got that out of my system. Now it's back to thoughtful commentary.

Please Check Box For Unspecified Social Change

Courtesy of Riesenmaschine, I bring you a question (G-PDF) presented to the citizens of Berlin on 17 September 2006, concerning the "New Regulations on Referenda and Petitions for Referenda":

Ballot Question: Do you agree to the changes in Articles 62 and 63 of the Constitution of the City of Berlin, as published on pages 446 and 447 of the Law- and Regulations-Gazette of Berlin on 3 June 2006?   

Yes/No

Kathrin Passig of Riesenmaschine comments (G):

The ordinary citizem, steeled by years of psychological testing and market research, recognizes that the question is hardly meant to be taken at face value. Something completely different is being tested here, namely: how many Berliners are willing to vote on some completely invented subject? And how many of them will choose the progressive "yes" option ("Change! Change is always good!") and how many the conservative ("I have no idea what it is, but I want it to remain exactly the same.").

More On Why Rumsfeld Won't go to Prison

Thanks to Atlantic Review for the trackback to my previous post. Since they cited only the serious introduction to it (didn't they like the little playlet?), I guess I will have to address the matter seriously, although that wasn't my first instinct. So here, I'll clarify where I got my information, and correct a small mistake that crept into the previous post.

My source was a long, excellent piece in Die Zeit from 9 November by Jana Simon called "One Man Against Rumsfeld" (Einer gegen Rumsfeld). It's not online, or I'd link to it. It's a profile of Wolfgang Kaleck, a Berlin human-rights attorney who routinely represents victims of torture and is co-ordinating the German side of the lawsuit against Rumsfeld. Kaleck emerges as an interesting figure; he is one of the few lawyers in Germany who can be said to be specialized human rights attorneys. He's represented victims of Stasi surveillance who wanted to review their files, and victims of right-wing attacks. The author of the article notes that Kaleck can sound "rather strict" and that his "discussions with people who do not think like him can end very bitterly (sehr unversöhnlich)" but suggests that perhaps this is an unavoidable deformation professionelle for a human-rights attorney. (As a soon-to-be-former human-rights attorney myself, I think Simon is onto something here).

Re-socializing Rummy

As you're no doubt aware, German lawyers, working in concert with the Center for Constitutional Rights, have filed a lawsuit asking Germany's top prosecutor to investigate Donald Rumsfeld for war crimes and Geneva Convention violations. If the Attorney General chooses to pursue the motion, she would use a 2002 German law (G-pdf) which gives Germany "universal jurisdiction" over war crimes and violations of international law, even if they have nothing to do with Germany.

There have already been 53 petitions to invoke the law and none has been acted on, according to this week's Die Zeit, so there's pretty much zero chance of Rumsfeld going to prison in Germany. This is unfortunate, since German prisons offer prisoners a wide range of therapeutic programs to achieve the legally-prescribed goal of "re-socializing" offenders. I think Rummy could benefit from some of these. Here's a little play I wrote on the subject, which will be coming to a dinner theatre near you soon.

Re-socializing Rummy

Donald Rumsfeld is sitting at a desk in an interview room in the the Justizvollzugsanstalt Tegel Berlin. He looks angry and impatient. A middle-aged man enters the room dressed in a black turtleneck sweater, holding a file folder and a clipboard.

Rumsfeld: Good grief, young fella, where's all your hair?

Interviewer: My hair? I have no hair.

Rumsfeld: But you couldn't be a minute over 35! Listen, young man, just because it's getting a little thin up top doesn't mean you've gotta go whole hog and shave your head. You want to go through life looking like Telly Savalas?

Interviewer: I do not know who that is. Anyway, Mr. Rumsfeld, I am here to interview you, not to discuss hairstyles.

Rumsfeld (pointing at watch): Alright, but keep it short. I have a meeting with my team of lawyers in half an hour.

Interviewer: Let me introduce myself. My name is Detlef Klingenschäler, and I am a social pedagogue.

Rumsfeld: Deflett what? Social what?

Sausage-Skin Recycling

...is unnecessary, according to Germany's Packaging Ordinance. As a public service, I present you a list of other items not considered "packaging":

- Flower pots intended to stay with the plant throughout its life

- Tool boxes

- Tea bags

- Wax layers around cheese

I live to serve.

Public Service Post: Watch What You Say in Germany

With this post, I am going to take the controversial step of actually posting something containing useful information. I know, it's a break with GJ tradition, but something that recently occurred got me thinking.

The other day someone who shall remain nameless, an expat living in Germany, contacted me privately. The person had hired a professional -- let's say a plumber -- and wasn't satisfied with the service he provided. The person described the service on their blog, and apparently identified the plumber by name. Next thing you know, the person's gotten a letter from the plumber's lawyer. He's suing the blogger for all sorts of scary-sounding things.

This says a few things worth knowing about Germany. First of all, the German cocktail-party stereotype of Americans as litigation-happy is pure, 100% Freudian projection. In fact, what stands out when you look at German cases is the sheer, mind-boggling triviality of the complaints. People will sue over an ugly comment, a negative customer evaluation, and, of course, over their beloved package vacations. A list of the "vacation defects" and the corresponding price reductions can be found here (G). Examples: "too little furniture" in your hotel room gets you a 5-15% percent discount; too much noise gets you between 5 and 40%; "no mini-golf" gets you a 3-5% deduction; "no nude beach" gets you a 10-20 percent discount!

Law and Economics In Europe?

Beginning in the late 1960s, the legal approach known as law and economics (L&E) began to transform legal education in the U.S. L&E used tools derived from the field of economics to study legal rules and legal behavior. The questions L&E asked were not so much "is this new environmental regulation constitutional?" or "what legal philosophy does this new environmental regulation reflect?" but "given what we know about human behavior and economic incentives, is it likely this new regulation will do what it's supposed to?" Similar questions were asked of other laws, such as minimum-wage laws, anti-monopoly regulation, emissions-trading regimes, or "three-strikes" punishment laws.

European legal scholars never really warmed to L&E. The law Europeans study is heavily influenced by deontological thought -- the notion that the law reflects fundamental principles of morality independent of practical concerns. You can see this heritage in such principles as the prosecutor's duty to prosecute every crime of which she becomes aware (because the law was broken and that, in itself, requires a response), or the doctrine that all breaches of contract should be punished because, to quote a little fancy Latin here, pacta sunt servanda -- agreements should be consummated. By contrast, L&E argues that breaching a contract "is acceptable, and indeed should be encouraged by contract law," when the net economic benefits of breach are clear. This notion invariably strikes most of my students as amoral and incomprenehsible.

There are German legal scholars doing work in the still-exotic field of L&E (see here (G) and here (G) for examples). However, as Legal Theory Blog reports, a recent paper looked at the topics of publications and showed that Europe still isn't demonstrating much enthusiasm for the project. Straight to the paper excerpts, with Larry Solum's commentary in-between:

A Field Guide to Neo-Nazis

Sorry not to have posted much lately, I took a little trip to Rome, where I learned that the main Italian Communist party wants to provide everyone with free DSL internet. Refreshingly forward-looking of them!

But now back to Germany. I've lived almost three years here, and I have yet to see a neo-nazi. I'm a bit disappointed. They're hard to find. Neo-nazis have about the same position here as they do in the States: they're part of a miniscule sub-group that occasionally gets headlines, but plays a marginal role in daily life, unless you happen to live near them and not have white skin. They're especially rare in relatively prosperous parts of former West Germany, where I live.

But maybe I have seen a few, and didn't know it. They're hard to spot, since German law bans symbols commonly associated with the Third Reich. The ban creates a game of cat-and-mouse: the authorities ban a symbol or slogan, only to have right-wing groups replace it with a coded substitute which has so many meanings (or whose meaning is so obscure), that the courts rule it has no direct connection to the Third Reich.

Yesterday, I picked up a field guide to these codes at my local bookstore: Versteckspiel: Lifestyle, Symbole, und Codes von neonazistischen und extrem rechten Gruppen ("Hide and Seek: Lifestyles, Symbols and Codes of Neo-Nazi and Extreme Right Groups"), published by the non-profit group "Agency for Social Perspectives."

Mainstays of the iconography are derivatives of Nazi symbols, such as swastikas that have 3 or 12 arms instead of 4, or which have otherwise been slightly altered. Propaganda posters featuring tanks divisions, rows of square-jawed heroes or hordes of young men marching in uniform never seem to go out of style, even if now the youths are marching for the "Folk-Faithful Northern Youth Movement of Germany"  References to Nordic mythology and runes are also popular, especially when accompanied by drawings that look like heavy-metal album covers.

Confessions of An Austrian Profiler, Part I

I've arrived in Paris, and am surprised to find out that the hotel I am staying in has free wireless Internet.  Just a few months ago I was in Paris, with an urgent need to send a file to someone (yes, I know, very boring) and I couldn't find a bloody hotspot anywhere.  Even the accursed Starbucks was cold.  I entertained some very rude thoughts about Frenchmen and technology back then, but now I take it all back. 

I will wander around Paris a bit and perhaps post some entries.  Thanks for the recommendations in the comments; I will certainly look into them! 

This is my 8th or 9th time in Paris, so I've already seen the pleasant and beautiful things.  This time I'm going to concentrate on obscure museums ("Museum of the Smoker," anyone?  "Musee Ernest Hebert"?), corpses and sewage.  And classical music.  But mostly corpses and sewage.  I will try to post once in a while, but probably not too often, since that means sitting in a hotel room in a drab suburb of paris (Vanves). 

And now for something completely different. 

As promised, I've  begun reading Bestie Mensch (Man the Beast), by the Austrian criminal profiler Thomas Müller.  I'm impressed.  Müller can write, but doesn't strive for effect.  Well, he does a little bit, but what else would you expect of a man who studies rapists and murderers for a living -- including Lutz Reinstrom (G), the infamous Acid-Bucket Murderer?

Aside from a few forgivable forays into the macabre (and the lurid red-tinged author portrait on the cover) the book is extremely thoughtful, even dense; in fact, it lays out a comprehensive theory of human conduct and personality.  To Müller, criminal profiling is not an exercise in psychological diagnosis or statistical analysis (although they have their place), but depends mainly on precise observation of other people.  Extremely precise.  Müller reports that he's spent his entire life cultivating this faculty, and proves it.

Crime, Innocence, and Therapy Part II

A while ago I wrote Part I of a few observations of the German legal system and criminology triggered by the German television documentary "Mask of Evil," which dealt with sex offenders.

By popular demand (err, one reader), here's Part II, which I've been noodling away at for a week or so.  Keep in mind, these are nothing more than undigested, off-the-top-of-my-head musings, which is what blogs are for.  I've also written academic articles on the subject, with footnotes and all, but I'll spare you those.

3.  Bad or Mad?

Once upon a time in the English-speaking world, many believed that violent crime was a symptom of social deprivation and mental illness. Once these things were eliminated, crime might gradually disappear. Therapy, not punishment, should be the goal of the legal system. Lady Wootton, a British reformer, argued in the late 1960s that advanced in psychiatry had shown there was no longer a clear distinction between mentally normal and mentally abnormal criminals.  The idea of mens rea, roughly that criminals should be punished because their crimes showed they had an "evil mind," she argued, had "withered away."

Similar arguments by American scholars, as well as the general live-and-let-live grooviness of the 1960s, softened American attitudes toward crime.  (In the late 1960s, for instance, almost half of all Americans believed the death penalty should be abolished). During this time, new rehabilitation and counseling programs were tried in American prisons.

The initial results were disappointing. "Nothing Works" was the title of a 1974 article in the conservative American magazine Public Interest, which purported to show that all these rehabilitation programs had done little to reduce recidivism (Rueckfall). Violent criminals might enjoy rehabilitation programs, but most seemed to return to a life of crime on release. The article was influential, even though many dispute its conclusions. Dissenters argue that the rehabilitation programs assessed "Nothing Works" and similar articles were underfunded and poorly-conceived. Thus, critics say, the global conclusions in "Nothing Works" were premature and unjustified.

Crime, Innocence, and Therapy Part I

Last week I watched several parts of a documentary series called "Mask of Evil", about the detection and treatment of sex offenders in Germany, on the public-affairs channel here. 

I've been noodling around on a post about it for a while now.  The post is turning into something of a monster -- I'm writing something academically in just this area right now, which means my little head's full of ideas and research that just want to be free!  The post is so long that I'm going to have to split it in sections, and into two parts.  Sorry about the prolixity, but remember, (1) I am a recovering attorney; and (2) I warned you.  Anyone who's interested in criminal-justice might find it interesting, for everyone else, freedom's just a mouse-click away...

Introduction

"Mask of Evil" was made in 2004, and originally shown on a major public TV channel.  The directors traveled throughout Germany to various prisons and treatment facilities, interviewing not only the violent sex criminals who were the focus of the film, but also police officials, family members, and victims; as well as and therapists and psychologists who worked with the inmates.  Despite the dramatic title, it wasn't particularly sensationalistic.

The subjects were men who had committed sexual offenses and had been caught and imprisoned.  "Georg B," or "Konstantin N.," appeared onscreen, without concealing their faces.  The documentary even re-created interviews between the sex criminals themselves -- played by themselves -- and psychologists who were treating them: "So, do you think that your fantasies have become more or less violent here in prison?" "More violent.  I don't want to be released, because I know I'll do something horrible again."

The 6,000 Euro Insult

On German T.V., there's extremely highbrow (3-hour documentaries about opera stars), high-middlebrow (Harald Schmidt, a German carbon-copy of David Letterman), and then things pretty much go to hell in a handbasket.

The lower order of entertainers are pretty dire, as the FAZ newspaper recently lamented (German).  According to the FAZ, a brief interlude during the 1980s, in which German comedy introduced character-driven sitcoms based on everyday situations, "the crooked teeth, horrible glasses, and funny hairdos are back."

So are the schoolyard insults (assuming they ever left).  "TV Entertainer" Oliver Pocher recently staged a gag on the popular TV quiz show "Wetten, dass" in which he stood in a public square in Hannover and encouraged people to dye their hair orange using a spray-can.  For some reason.

As a German woman named Dana Gottschalk approached, he looked at her ID card, which showed she was 29 years old, and remarked "You sure look old for your age!"  He then hinted she might want to enroll as a contestant on a TV show on his regular network, in which people get cosmetic surgery.  [Yes, the show exists, and it shows graphic before, during, and after footage.]

Unfortunately for Pocher, publicly insulting someone's honor is an "invasion of their right to personality" in Germany.  Gottschalk sued (German) Pocher for 35,000 Euro.  Even Pocher seems to know he went too far; he agreed to pay 1000 Euro.  The judge eventually set the amount at 6000 for the tasteless remark.

The truth is not a defense to this kind of legal liability in Germany.  Therefore we were spared the spectacle of Pocher mounting a defense by showing Gottschalk really did look old for her age...

The Immaculate Victim

After an unusually long holiday break, I am finally back in Germany and should get back to more routine (and more polished) posting.  Hope everyone had a lovely holiday, and thanks for bearing with me.

Not infrequently, I've expressed some exasperation wonderment about the blanket coverage the German press gives the American criminal justice system, especially in death penalty cases.  Coverage of the American criminal justice system, in my rough estimate outweighs coverage of the German system by at least 2-to-1.  I often wonder why that is, since there's essentially nothing the average German can do to influence American criminal-justice policy.

So three cheers to the fine German criminal-justice reporter Sabine Rueckert, whose coverage appears regularly in Die Zeit.  Her stylishly-written reports place frame the particular case or issue in a rich contextual background.  Further, she actually leaves her office and does real, honest-to-God investigative journalism, which seems to be much rarer on the Continent than in the U.S.

An amazing story in the Dec. 21st Die Zeit is an ideal case-in-point.  It started in 1994, when an 18-year-old female student in Osnabrueck accused her father -- unfortunately named Adolf S. -- and her uncle, Bernard M., of having raped her at least 14 times between when she was 12 and 17.  Not only that, her father, according to the girl, attempted to provoke an abortion using a coat-hanger.  The two men were sentenced to prison based entirely on the girl's story, which was bolstered by the caregivers at a clinic to which she was sent after she made the accusation. 

According to the investigation performed mostly by Rueckert herself, though, the clinical personnel overlooked any number of troubling aspects of her story: her diagnosis with Borderline Personality Disorder (which is often associated with false accusations of abuse), the fact that she had access to pornographic materials from which she could have derived the details of the rape story, and even the fact that she admitted to therapists that the accusations against her uncle weren't true.

High Court Debates "Shoot-Down" Law

Today, the German Federal Constitutional Court debates the constitutionality of the recently-passed Air Security Law.  The law switches around various bureaucratic competencies in order to streamline and tighten air-traffic security in the wake of September 11.  One section has aroused controversy, and is today being debateed before the Constitutional Court.

It's contained in Section 14 of the law (German).  The relevant provisions -- written in classic German bureaucratese -- read as follows:

(1) To prevent the occurence of an especially serious accident, the armed forces are permitted, in the airspace, to drive away aircraft, force them to land, threaten the use of armed force, or to fire warning shots.

(3) The direct application of armed force is only permissible if it is to be assumed under the circumstances that the aircraft is intended to be deployed against human life, and that the direct application of armed force is the only means of defense against this present danger.

Why the Judges Wear Red

The German Federal Constitutional Court (FCC) (Bundesverfassungsgericht) have decided that Gerhard Schroeder's decision to call for and lose a no-confidence vote was within his "margin of appreciation," to put it vaguely European-ly, and therefore that the new elections scheduled for Sept. 18th can take place.  No big surprise.

Here's a picture of some members of the Court, similar to many that have been flickering on many TV screens lately.  I am now going to answer a question some of you might have been asking yourselves: why the bright-red judicial robes and hats?

The answer comes from page 80 of Der Gang nach Karlsruhe ("The Route to Karlsruhe," the city in which the Court is located), a recent popular history of this fascinating Court by the German legal journalist Uwe Wesel.  I turn to this book whenever the official treatises on the Federal Constitutional Court were too turgid, abstract, and boring, which was very frequent. 

Wesel discusses not only the major decisions and doctrines of the FCC, but also the personalities on and around the court and the political context in which it operates.  What's more, he does so in crisp, lively, tangy prose.  On page 80 he describes how the Justices chose their robes.  By the early 1960s, The judges of the FCC, Wesel writes (in my informal translation),

no longer wanted to wear the same robes as their colleagues [on Germany's other high courts].  They formed a Robe Committee, and had a theater director from Munich visit, carrying a thick book full of colorful costumes.  From this book they chose the most fitting costume.  They were the robes worn by the highest judges of Florence in the 15th or 16th century.  Thus we have the red robes with white band and red cap.

I know, it's utterly useless trivia.  But still good to know, no?