One of the strangest cases in modern German crime has just ended in a life sentence (g) for the defendant, Klaus O. Klaus was a metalworker in a medium-sized firm near Bielefeld. He’d worked there for 38 years.
A few years ago, people at the firm started falling seriously ill for unknown reasons. They had been poisoned by substances such as lead acetate. One was left in a coma, others with permanent kidney damage requiring dialysis.
One of Klaus’ co-worker noticed a suspicious white substance on his sandwich. He advised the firm management, which installed a security camera. The camera caught Klaus O. poisoning his colleagues’ lunches. The authorities suspect he poisoned up to 21 people.
Klaus never made a statement to the authorities, and never revealed his motive. He seemed to have chosen his victims more or less at random, and there was no evidence he had grudges against them. A psychiatrist appointed by the court to evaluate him said his attitude was like a scientist conducting “experiments”. The Bielefeld Regional Court sentenced Klaus to life in prison for attempted murder and a series of other crimes. The Court also made a special finding that he was ‘especially culpable’.
To understand why this is important, we need to go in to German sentencing law. In Germany, ‘life’ in prison is a specialized legal term. In 1977, the Federal Constitutional Court of Germany handed down the Life Imprisonment decision (g). The Court held that a life sentence was constitutional under German law, but that, to respect human dignity, a prisoner sentenced to life must always retain some chance of being released at some time. So absolute life without parole is unconstitutional.
The German parliament eventually created a new system of punishment to implement the Court’s decision. The law now provides that someone sentenced to life in prison must be considered for parole after serving 15 years of their sentence, and parole should ordinarily be granted if, after serving that time, there is a “favorable prognosis” for the defendant to be re-integrated into society. However, this rule can be superseded if the trial court finds that the defendant’s actions showed a “special” or “unusual” level of culpability (besondere Schwere der Schuld, literally: An unusually heavy load of guilt). According to a recent decision (g) of the Federal Supreme court of Justice, a finding of special culpability “requires that the overall context of the crime, including the personality of the offender, deviates so far from the court’s experience of ordinary murder cases that the release of the prisoner on parole after the minimum of fifteen years appears inappropriate, even if the defendant has received a positive prognosis.”
The Bielefeld court went even further, though, and entered findings which can later be used to impose post-sentence protective custody (Sicherungsverwahrung). This allows offenders who have served their official prison sentence to be kept in secured ‘treatment’ facilities if a court finds that they have “a tendency to commit serious crimes which pose a threat to the community.” Formerly, German courts could order this sort of preventive detention when an offender was about to be released from prison, even if nobody had raised the possibility of preventive detention when the offender was initially sentenced for his crime. The law allowing “retroactive” preventive detention was then successfully challenged in the European Court of Human Rights, triggering a series of German court decisions and legal reforms, as the Strasbourg Observer blog notes:
Since 2009, the European Court had to examine in several cases the compatibility of German legislation on detention of serious criminal offenders for preventive purposes. In its judgment of M. v. Germany, the Strasbourg Court characterized it as a “penalty”, applying to it the guarantees of Articles 5 and 7 of the European Convention. The preventive detention must be regarded as a “penalty”, on the one hand because its aim is not only preventive but also punitive and, on the other, because of the gravity of the measure provided by the German Criminal Code. Following this judgment, and called by the Federal Constitutional Court to completely recast the system (see BVerfG, 4 May 2011, 2 BvR 2365/09, BVerfGE 128, 326), a new law has been adopted on 5 December 2012 (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung). It is in this context that in 2016, the Court rendered the Bergmann judgment, which constitutes a turning point in its position. This was the first case in which the Court examined the compatibility of the Convention with the new German legal framework on preventive detention. The Court stated that, since the measure is ordered for therapeutic purposes in respect of an applicant suffering from a mental illness, the nature and purpose of the measure change substantially, to the point of no longer as amounting to a “penalty” (para. 182). Preventive detention is therefore exempt from the guarantees of Articles 5 (1) and 7 of the Convention.
To sum up the current state of the law in plain(er) English, German courts can still order offenders detained after they have served their official prison sentence, as long as (1) the court which handed down the initial sentence enters a finding that preventive detention may later be necessary; and (2) preventive detention after sentence is done for therapeutic purposes instead of punishment and conditions in detention are sufficiently “distanced” from ordinary prison confinement (Abstandsgebot).
Germany’s laws on preventive detention are controversial, as the judicial back-and-forth described above makes clear. However, the question is: what are the alternatives for protecting society from especially dangerous people? The most lenient approach is to simply release them after a fixed term, and accept the fact that some offenders (not that many) will commit fresh crimes. The American approach is to hand down either death sentences or life-without-parole sentences which afford prisoners no hope of release at all, no matter how much they change while incarcerated. The German system represents a middle-ground: Monitor how the offender does in prison, and then decide, shortly before release, whether to confine him afterward for “therapeutic” purposes.
In any case, the Bielefeld sandwich poisoner received the highest penalty allowed by German law: After serving 15 years of his sentence, he will not be immediately parole-eligible. The court will assign an additional period of parole ineligibility. And even after he serves out the additional period of parole-ineligibility, he may be kept in preventive detention. Given his age, then, Klaus will probably spend the rest of his life behind bars.