What is the aggravation of a crime

How the government evaluates amendments to the Criminal Code: Are harsher penalties really deterred?

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Burglaries, violent crimes, child pornography: legal policy regularly justifies the tightening of penalties with the aim of deterring offenders. But is that ever checked?

The federal government does not regularly review newly introduced tightening of penalties to determine whether they have a preventive effect and whether they are measurable as a deterrent from criminal offenses. That comes from an answer from the Federal Ministry of Justice and Consumer Protection (BMJV), which LTO is present. The Left Party in the Bundestag asked for findings and figures on the current aggravation of several offenses, including the changes in burglary and resistance to law enforcement officers from 2017.

In its response to the inquiry, the Federal Government provides figures from the police crime statistics and the Federal Statistical Office on the convictions in Germany. However, the Federal Government expressly emphasizes that the number of cases alone cannot be used to assess the effect of a change in the threat of punishment in the Criminal Code (StGB). Framework conditions before and after a change in criminal law are not constant. In addition to the scope of punishment, the criminal offenses would also be changed in some cases. In some cases there is not only an amendment to the Criminal Code, but also other preventive measures.

In other words: the question of whether a tightening of penalties has a preventive effect, i.e. whether it scares off potential perpetrators and promotes compliance with the law, cannot be answered so easily with the number of cases. But, as evidenced by the answer, there are no attempts to get to the bottom of this question in more complex research projects. All the more regularly, however, new tightening of penalties are brought into play in terms of legal policy on the grounds of aiming at deterrence.

Left: "Political activism seasoned with a pinch of authoritarian lust"

"The answer from the federal government shows that debates about the preventive effect of tightening criminal law are at least partially conducted in a vacuum," says Niema Movassat, chairman of the Left in the Bundestag's legal committee. There is a lack of reliable figures and scientific research into how the tightening affects in reality. "Before the next penalty framework is increased in the Bundestag in a publicly effective manner, we need a large-scale study on whether and how a tightening of the threat of punishment has a preventive effect," said Movassat. "Otherwise the impression remains with me that it is just a matter of political activism spiced with a pinch of authoritarian lust for punishment."

Basically, it is up to the legislature to give a change in the law an evaluation. According to Section 44 (7) of the Joint Rules of Procedure of the Federal Ministries, it is up to the lead ministry to specify in the justification for the draft law whether and when the intended effects should be examined for their success.

In its answer, the Federal Government also refers to this regulation. "On the basis of this, even after 2013, an evaluation is not planned for every change to a criminal provision. An evaluation is provided above all if fundamental systematic changes are made or there is great uncertainty about the effectiveness of a change in the law."

The BMJV is to play a special role as an observer: "It is incidentally the task of the Federal Ministry of Justice and Consumer Protection, regardless of an evaluation - to continually check whether the existing criminal law instruments are sufficient and, if necessary, to make adjustments," the answer said .

As observed by the BMJV

Upon request from LTO the BMJV explains that in addition to numerical statistics, the highest court case law on the individual criminal offenses is observed and the experience of the law enforcement authorities from the federal states is incorporated into this observation.

The BMJV is also commissioning individual research projects, for example on the newly introduced youth arrest in addition to suspended youth sentences (Section 16a Youth Courts Act), on conduct supervision or on the anti-doping law from 2015.

Work is currently being carried out on the award of a new research project on the subject of "Evaluation of the criminal provisions for combating human trafficking (Sections 232 to 233a StGB)". The study "Legal probation after criminal sanctions - a nationwide relapse investigation" provides general information on the effect of criminal sanctions. However, on behalf of the BMJV, the study does not examine the effect of tightening the penalties, but rather whether and how criminals who have been released from custody become criminal again. Roughly speaking, around a third of those convicted will relapse again within the next three years after their release. Not much can be deduced from this about the preventive effect of more stringent penalties.

Criminologist: Investigation "methodologically very demanding"

The criminologist Prof. Dr. Tobias Singelnstein from the Ruhr University in Bochum considers research into the preventive effect of aggravated penalties to be "indeed methodologically very demanding". He continued to say yes LTO: "However, there is sufficient expertise in the criminological research landscape to carry out related research projects. Especially in the area of ​​criminal law, where the state intervenes particularly intensively in the fundamental rights of its citizens, an evidence-based legal policy is particularly necessary." In his opinion, this should also include an evaluation of legislative changes.

Criminal law experts like to point out one central aspect: The deterrent idea presupposes that the commission of criminal offenses is weighed up rationally. However, if you act in a situation that is emotionally charged or influenced by drugs or medication, weighing up your act with a higher threat of punishment will probably not play a major role. This is how scientists saw it in a 2016 statement to the state parliament of Schleswig-Holstein. At that time it was about tightening penalties to protect emergency services.

Professor of criminal law: "A bet on the effectiveness of criminal regulations"

And it is not a new finding among criminal lawyers that even stricter penalties in the StGB do not result in successful investigations, but conversely, more staff or better technology are a legally expensive project for the investigators. The President of the German Lawyers' Association, Edith Kindermann, named the call for increased penalties in the Süddeutsche Zeitung only recently "a unfortunately common reflex" that does not solve any problems. The criminal lawyer Prof. Dr. Jörg Eisele recently described the tightening of penalties as "a bet on the effectiveness of criminal provisions through deterrence." The tightening of penalties, which the two are concerned about, is imminent: At the beginning of July, Justice Minister Christine Lambrecht (SPD) presented a new package to combat sexual violence against children.

In the case of abuse and child pornography offenses, the range of punishment is to be increased and the offenses to be classified as a crime. This means that a minimum sentence of one year in prison will apply in future. In the current 63-page draft law from the BMJV, under the section "Evaluation", it says: "A regulation for evaluation is not necessary, because the proposed changes only concretise or tighten existing requirements or only make gradual changes."