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.
David Vickrey at Dialog International then chimed in: "I can only surmise what Lane’s motivation is in writing this piece. Did he think that pointing out some questionable motives of German politicians back in 1949 somehow offers legitimacy to state-sanctioned executions in 2005?" Vickrey claimed to have found evidence that a Social Democrat originally proposed the excution ban, but after receiving an email from Charles Lane, said he would wait to send a letter to the editor of the Washington Post pending "my ability to conduct some more research into the topic."
I’m not sure whether Vickrey ever got back to the topic, but I recently checked out Evans’ book in the course of doing other research, and read the chapter on abolition. Lane’s account accurately follows that of the book, and the book seems quite credible. Evans himself is a Cambridge historian who’s written several well-received books on contemporary German history and has received a prize from the city of Hamburg. Rituals of Retribution is over 900 pages long, and extremely carefully researched. Nor is it the work of a Germanophobe. The review I linked to above paraphrases one of Evans’ arguments thus: "Certainly National Socialist positions on capital punishment were barbarous, but prior to 1933 German exceptionalism was in its humanity, eliminating the death penalty for property crimes quite early and executing murderers as a far lower rate than Britain, France, and of course the United States." Much of the account of the abolition of the death penalty in Germany is taken from German jurist Bernhard Düsing’s 1952 account, Die Abschaffung der Todesstrafe in der Bundesrepublik Deutschland (The Abolition of the Death Penalty in the Federal Republic of Germany).
As Evans makes clear, there was a sharp divide in opinion in post-war Germany on the subject of the death penalty — depending on who was going to be executed. 77% of the population supported executing common murderers in the late 1940s. Evans argues this was partially explained by a significant crime wave caused by post-war chaos, as well as revenge attacks and robberies by ‘Displaced Persons’ (many of them former slave laborers). However, it was also commonly thought — especially on the political right — that the death sentences against Nazi war criminals handed down by allied courts were nothing more than "victors’ justice." Some of the war criminals were doctors, lawyers, or government bureaucrats, and had occupied respected positions in German society.
At the time, however, it seemed politically infeasible to argue that Germany should maintain the death penalty for common criminals, but exempt war criminals. Therefore, Seebohm — and he was the very first to propose the motion, as Lane reports — suggested a blanket ban on the death penalty. During the deliberations of the Parliamentary Council, it was unknown whether this death penalty ban would actually prevent any executions of war criminals (since those sentences had been handed down by non-German courts), but it was felt that abolishing the death penalty would send a strong signal to Allied commanders, who had the final power to grant or deny clemency to convicted Nazi war criminals. As it happened, the death penalty ban was not interpreted as binding on allied courts, and executions of war criminals continued. (Article 102 might have played a part in some clemency decisions in marginal cases, though). Social Democrats supported a general ban for abolitionist reasons, as David Vickrey points out, but they did not introduce the idea.
Throughout the 1950s, public opinion in Germany continued to overwhelmingly support capital punishment for convicted murderers, despite the Basic Law. Conservative parties (including Seebohm’s German party, which resumed support of capital punishment when it became clear that Article 102 would have little effect on Allied executions of war criminals) repeatedly introduced motions in the new German parliament to re-instate the death penalty, which could have been accomplished by a 2/3 vote. They came very close to success, since conservative parties dominated the first post-war parliaments. Adenauer, by the way, did not vote for the inclusion of Article 102 in the Basic Law and later spoke out in favor of re-introducing the death penalty.
Social democrats, led by figures such as Carlo Schmid, Friedrich-Wilhelm Wagner, and Gustav Radbruch, strongly opposed re-introduction of the death penalty, and the speeches and arguments they made largely mirror today’s German discourse about the death penalty. The key figure was Thomas Dehler, a Free Democrat who became Justice Minister under Adenauer. Although his party was split on the subject of capital punishment, he himself was strongly opposed. By means of various maneuvers, he was able to prevent votes on many re-introduction measures. He contributed a brief Foreword to Düsing’s 1952 book in which condemned the "dumpfe und triebhafte" (dull and automaton-like) appeal by conservative parties to public opinion strongly favoring executions.
German public opinion continued to favor the execution of convicted murderers (especially when the question excluded "mitigating circumstances") until the late 1960s, when support finally sank under the majority threshhold, where it has remained ever since. As Evans concludes:
This dramatic change of public opinion reflected to some extent the effects of anti- or at least non-Nazi education in the 1950s and 1960s, which marked off the younger generation from those who had been taught in the 1930s and early 1940s that killing criminals was a good thing, that life was a struggle for survival, and that enemies of the race deserved to die. Even more than this, however, it was the product of the more open debate which began in West Germany in the second half of the 1960s about the crimes committed by the Nazis…. [T]he revelation of the full extent of Nazi exterminism convinced a majority of West Germans that they should not allow even the faintest echo of it to sound in their country. [p. 803]
So there you have some more background on the abolition of the death penalty in Germany. To me, there are two interesting conclusions to be drawn from Evans’ account. First, the timing of abolition of capital punishment in Germany was an historical fluke that probably would not have occurred but for Seebohm. The Social Democrats favored abolition, but had no plans to argue for abolition in the Basic Law, since they had only a minority of seats in the Parliamentary Council and no desire to alienate almost 80% of the population on a high-profile political issue. Second, as in almost all countries that have abolished the death penalty, abolition took place despite significant majority support for capital punishment, and was accomplished and preserved by measures that insulated the issue from direct democratic decision.
To return to Lane, I haven’t the faintest idea why Charles Lane wrote the piece, but then again, neither do any of the people confidently reading his mind and attributing views to him. I can say from personal experience, however, that you definitely do not have to be a supporter of the death penalty to take exception to the inaccuracy and insufferable, pious self-righteousness of some German commentary on the U.S. death penalty…