The American penal system is plagued by a lack of coherent purposes and clear institutional accountability. If we were interested in a model for how to do things better, Germany might be a good candidate. I’m no expert on the German system, but I’ve just read with great interest a new paper on the way that Germany manages its life sentences. The paper, authored by Dirk van Zyl Smit and entitled “Release From Life Imprisonment: A Comparative Note on the Role of Pre-Release Decision Making in England and Germany,” appears as a chapter in Fervet Opus: Liber Amicorum Anton van Kalmthout (Marc Groenhuijsen et al. eds., 2010).
Although the paper particularly focuses on a fascinating 2009 decision by the Federal Constitutional Court, it also provides some useful background information on the the legal framework for life sentences in Germany. Here are some features that stand out for me. First, all life sentences must be reconsidered at the end of fifteen years. This seems to me a sensible time period. Fifteen years is a terribly long portion of any person’s life, and there are few crimes that warrant any more incarceration as a matter of desert. Moreover, inmates are apt to change dramatically over a fifteen-year period, and whatever a judge may have thought about incapacitative needs at the time of sentencing will be due for reconsideration in light of a great deal of new information.
Second, at the time of initial sentencing, the court must make a finding about whether the offense was particularly blameworthy, which helps to focus the reconsideration decision fifteen years later. If the offense was particularly blameworthy, then the release court must take into account both desert and incapacitation purposes; however, if the offense was not particularly blameworthy, then the release court must focus its attention only on the residual risk posed by the offender to society.
Third, even for lifers, the German system identifies resocialization as a primary purpose of imprisonment. Van Zyl Smit explains what this entails:
The German Prison Act makes provision for various forms of relaxation of the regime . . . . In this regard, not only does the Act provide that as far as possible all prisoners should be detained in open prisons or in open sections of prisons, but they could also be granted permission to work outside prison without supervision, leave prison unsupervised for a few hours a day, or be granted a more extensive furlough. (P. 235).
Fourth, “as a rule, lifers are not released if they have not been subjected to the trial period provided by a regime that allows a prisoner a degree of freedom” (235).
All of this strikes me as quite good to the extent that it helps to sort out which penal purposes are relevant at which stage of the process, requires clear findings as to desert and incapacitation, imposes a default presumption in favor of eventual release when community safety is no longer a concern, and contemplates a period of increased freedom prior to full release.
On the other hand, one risk with the system is that lifers who are not “particularly blameworthy” will be held indefinitely based on fears that they will prove dangerous upon release. One particular concern is whether prison officials are adequately accountable when it comes to providing services and opportunities in the area of resocialization. Similarly, in this country, community safety is often a major consideration in both initial sentencing and parole release decisions, but neither sentencing judges nor parole boards have much assurance that offenders will be or have been provided with adequate programming to maximize the prospects for a successful reentry. The fractured authority as between sentencing judges, parole boards, and prison officials may result in many offenders spending unnecessarily long periods of time in prison.
The accountability issues in Germany came to a head in the Federal Constitutional Court’s decision of April 30, 2009 (BVerfG, 2 BVR 2009/08 of 30.4.2009). The case involved a lifer who was convicted of killing his wife:
He did not have a previous record of violence and the court that sentenced him did not find that there were any particular factors that aggravated his blameworthiness. However, both at the time of his trial and subsequently, he consistently denied having committed the offense. The minimum period of 15 years that he was required to serve expired on 15 June 2008 and on 19 June 2008 the [local court with jurisdiction] declined to release him on the grounds that his future conduct could not be properly evaluated, since he had not been allowed any relaxations of the prison regime prior to this date. It was this decision that was appealed directly to the Federal Constitutional Court . . . . (235)
The court recognized that the system relied on prison officials supplying appropriate resocialization opportunities for lifers. If prison officials did not do so, they could effectively foreclose release. How was their discretion exercised in this case?
In early 2006, [the complainant] applied for relaxation. This was based on the expert opinion of a psychiatrist who in November 2005 had found that, notwithstanding the fact that the complainant denied having committed the offense, he did not pose a serious risk to the public at all. The psychiatrist estimated that a two year period of gradual relaxation of the regime would fully equip the complainant for life in the community. . . .
. . . In late April 2006 the prison authorities rejected the complainant’s request for relaxations on the grounds of the threat that he might flee or commit a further offence. (235-36)
The Federal Constitutional Court found that this process infringed the complainant’s right to have a judge make the decision about whether to extend imprisonment beyond the minimum period. The Court indicated that the lower court “should not have accepted at face value the claim of the authorities that granting the complainant relaxations posed a risk, particularly as it was not based on any evidence. Instead, it should have evaluated much more carefully the findings of the psychiatrists . . . .” (236). Put differently, the complainant was “entitled to a prognostic decision with an adequate factual basis” (237).
Based on van Zyl Smit’s description, it strikes me that the German case establishes a level of accountability for decisions by prison officials that would be quite extraordinary in the American system. The key insights that seems to drive the analysis are that (1) prison-based decisions on conditions of confinement can have a profound effect on the preparedness of an inmate for release; (2) preparedness for release controls the release date, and hence the amount of time spent in prison; and (3) determining the amount of time to be served in prison is most properly a judicial, not an executive, function.
Translated to the American system, this line of thinking would require us to view the work of sentencing courts, prison officials, and parole boards as a continuous, integrated penal process. Although it seems that all of these institutions are indeed engaged in the same basic enterprise and should be managed in an integrated fashion, they each have their own jealously guarded autonomy and quite distinct cultures and priorities. The German model suggests, however, that a more coherent approach may be possible.