In Which I Admire Millions of Tiny German Lawsuits And Annihilate Several Canards About the Law

The U.S. is famous in Germany for its 'runaway' juries which hand down zillion-dollar lawsuits against poor defenseless companies. Yet, as I told my dumbfounded students, Germany is a far more litigious society than the USA. In fact, according to a book-length 1998 study, Germany is the most lawsuit-happy country on earth:

Country Cases per 1,000 Population

• Germany 123.2
• Sweden 111.2
• Israel 96.8
• Austria 95.9
• U.S.A. 74.5
• UK/England & Wales 64.4
• Denmark 62.5
• Hungary 52.4
• Portugal 40.7
• France 40.3

My German students were dumbfounded by this fact. Most of them got their image of the world from the mainstream press. And, as usual, German journalists tended to obsess over the real or imagined failings of other countries, while remaining ignorant of what was going on in their backyard.

But aside from the good clean fun of this tu quoque response, it's interesting to think about why Germany is so litigious. I think there are 4 main reasons:

  • Legal insurance (Rechtschutzversicherung). Millions of Germans have legal insurance policies that pay for lawyers both to file claims and defend against them. This insurance is affordable because litigation costs in Germany are low. Legal insurance is actually an excellent idea, every country in the world could benefit from widespread legal insurance. What it means in Germany, though, is that if you have a policy, you don't have to think twice about filing a lawsuit. Granted, the lawyer is not supposed to file if you don't have a claim, but many do anyway. Legal insurance also provides a lifeline for many small-time lawyers — they can patch together a decent livelihood by having a constant docket of 40-50 small time cases going on at any time. None of these cases will generate a huge verdict, but a steady stream of small payments is enough.
  • Lawsuits are a fact of life. Nobody really takes them seriously. If your landlord hikes your rent, you use your legal-insurance lawyer to fight it. The landlord uses their legal-insurance lawyer to defend. After all, if you don't sue, you'll certainly have to pay the extra 10% in rent. If you do sue, you might end up with a discount. The landlord would probably do the same thing in your position, and knows this.
  • Close neighbors make bad blood. Germany is a small country packed with people. Everything you do in public is going to have some effect on your neighbors. If a potted plant falls off your city balcony, it's going to hit someone or something below. If your cat likes to relieve themselves on your neighbor's lawn, they're going to notice. And might just take lethal action. Your barbecue smoke is going to trigger someone's asthma 5 houses down. The list goes on and on. Every German state has a long, complex "neighbor law" (here's the one (g) for my state), and many lawyers do nothing else. And once again, these petty squabbles are going to end up in court because it's so easy to go to court because of legal insurance. 

And finally, no lawsuit is too tiny. As Wagner once said, a German is someone who will always do something for its own sake. Which means Germans will file a suit over anything. Why, here's a story (g) from the excellent criminal-defense blog lawblog. Two retirees went fishing for deposit bottles in Munich, a favorite pastime of poor Germans, or just ones who need some way to fill their days in the fresh air.*

They approached a large man-sized glass-recycling container, whipped out their grabbers, and started fishing around inside the container. Recycling containers are supposed to be reserved for bottles which don't have a deposit on them, like wine bottles. But many people don't care or don't know how to tell a deposit from a non-deposit bottle, and just toss everything in.

Sure enough, our two hunters found 15 deposit bottles with a total value of € 1.44. Two other Germans, who were certainly feeling very German that day, called the police and reported the bottle-fishers for theft. Wait, what? Two people minding their own business, helping recycle glass, augmenting their puny incomes, harming nobody, and their fellow Germans report them to the cops? Welcome to Deutschland, my friends.

Now German prosecutors are obliged to investigate every credible accusation of crime that comes to their attention, the famous "Principle of Legality"**. This they did. The first thing they had to determine was what the value of the theft was. Technically, this was a theft — once you throw a glass bottle into a recycling bin, it becomes the property of the recycling company. So you might think that the amount of the theft was the deposit value of the bottles. But no! It turns out that the recycling company does not separate out deposit bottles from other ones. Scandalous, I know. So all the bottles just get melted down. The prosecutor asked the recycling firm how much value the bottles would have as recycling material, and the firm said: basically, it's too small to even put a number on.

At this time, the prosecutor chose to halt the proceedings (einstellen) based on the idea that there was no public interest in prosecuting the offenders. The writer at lawblog thinks this was the wrong reason to stop the prosecution — he thinks a better theory is to deny the people had any attempt to commit theft, because they had no intent to take possession of the bottles — their ultimate goal was simply to transfer them to a different owner. 

Be that as it may, the main thing to notice here is that several different government employees spent hours of their time and used considerable resources to investigate an accusation of a crime which, at the very most, involved the lordly sum of € 1.44. It's probably only a slight exaggeration to say that the German state spent 1000 times more money investigating the theft than it was actually worth in the first place.

Now, am I going to snigger about this? Of course I am, and so are you. But at the same time, I'm not going to go too far. The most important thing to keep in mind about high numbers of lawsuits is that they are an important sign of social health. In the vast majority of societies, lawsuits are prohibitively expensive and courts are woefully underfunded and corrupt, so nobody trusts them. Germans and Americans trust courts to usually resolve legal disputes in a fair and equitable manner, otherwise they wouldn't seek them out so often. They're right to do so; both the USA and Germany have exceptionally fair and efficient legal systems, despite their imperfections. A fair, professional, and generally non-corrupt legal system is one of humanity's most important achievements, full stop. Most countries don't yet have one. If you happen to live in a country which does, take a moment and thank your lucky stars. 

* You'd be surprised how many Germans decide they just don't fancy showing up to work anymore and having someone boss them around and tell them to do things. So they develop something hard to pin down, such as a bad back or burnout stress, hire a good employment lawyer, and presto! They're still technically employed in a certain sense, but they don't actually have to, you know, do anything. Everybody wins: their former employers are free of someone who wasn't really contributing, the employee has all the free time he wants, and most importantly, the government doesn't have to formally add this person to the unemployment rolls. Northern European welfare states are notorious worldwide for using a million different tricks to lower their official unemployment rate, and this is just one.

** Some German lawyers, or wanna-be lawyers, believe a lot of adorably misguided things about the principle of legality. If you begin talking about the American legal system, they will get up on their hind legs and begin intoning something like this: "Well, you see, in America most criminal cases are resolved by plea-bargains, where the defendant admits a crime — quite possibly not the one he actually committed — in return for a lighter sentence. This shows the irresponsible, frivolous gamesmanship of the system, where the objective truth of what happened can be bargained away as if justice were nothing more than a poker game. Here in Germany (string music starts swelling in the background), we believe in the principle of legality, which means the prosecutor must investigate all crimes and must prosecute based on the objective facts of what the defendant actually did."

It's at this point that I usually interject to point out that this speech is, not to put too fine a point on it, a crock of shit. First, German prosecutors are absolutely not obliged to bring every case to prosecution. As with all German legal principles, the principle of legality has a pragmatic loophole so big you could fit Saturn through it. A prosecutor is always permitted to "suspend" (einstellen) a prosecution if it is deemed a petty offence (§ 153, Criminal Procedure Code). Suspend is yet another German euphemism, it means the case is dropped. Although there may be a tiny theoretical chance of it being re-started, this basically never happens.

There are many other sections of the Code that permit the prosecution to suspend the investigation or to not bring charges on a variety of different grounds, the most frequently used being the prosecution's belief that bringing charges is "not in the public interest" for some reason. As you might guess, there are hundreds of stories of prosecutors suspending prosecution of high-powered or well-connected people for vague reasons. In fact, there's a whole book (g) ("Prosecution Unwanted!") about this, although it's not very convincing overall.

Also, if you believe plea bargains don't exist in Germany, I've got a bridge in Moscow I'd like to sell you. Even before plea bargains were legally allowed in Germany, it was common knowledge that prosecutors used their huge discretion to plea-bargain all the time. Like American prosecutors, German prosecutors are hopelessly understaffed, and the entire justice system would collapse if cases couldn't be resolved informally.

The practice became so notorious that eventually the federal legislature decided to stop pretending and legalize it. In 2009, it passed a law which, for the first time, legally recognized plea-bargaining in Germany. The law was full of procedural safeguards meant to ensure that the defendants' rights were respected and the principle of legality was not undermined. Would the law pass constitutional muster? The German Federal Constitutional Court held that it did, in 2013:

The Notary, Our Noble Master

Gardeavue

Watched this classic again last night. Lino Ventura plays a detective who subjects a wealthy local lawyer — suspect in the rape and murder of two young girls — to an hours-long interrogation in police headquarters. Lino Ventura intensely watchable as always with his Easter Island head and ludicrously gigantic hands. And Michel Serrault is perfectly cast as the clever, oleaginous yet despairing suspect. Romy Schneider, as his wife, is just plain Romy. She never really becomes anyone else no matter what role she plays, but you won't hear me complaining.

I first saw this movie years ago, before I was even a lawyer, in the U.S. Part of a Romy Schneider film festival. As I watched it again, a few memories of my earlier reaction to the movie came back. First of all, I remember being surprised when the detective tells the suspect that he can call a lawyer, but the lawyer is not entitled to meet him. "Whoa," I thought back then, "that's totally unconstitutional!" Which it would have been, in America.

The second cultural misunderstanding comes from the fact that everyone keeps mentioning that the suspect, Jérôme Martinaud, is a "notary". As an American, I said: "Who cares?" Yet this fact is mentioned several times, and the script calls attention to when and whether characters refer to the suspect as Master (Maître, the official designation for French lawyers and some other professionals). 

In fact, at the time I saw the movie, I was a notary, even though I didn't even have a college degree. In the U.S., the only function of a "notary public" is to put a stamp on official sworn documents. You just ask someone if the document is accurate, get them to sign it, and stamp it. Anyone over 18 who doesn't have a serious criminal record can be a notary. Anyone. You just fill out a form, pay a small fee, and bingo! you're in.

The situation is vastly different in Continental Europe, where notaries must be lawyers. Not only that, they benefit from an ancient privilege system that (1) requires dozens of different kinds of documents to be notarized, and (2) limits the overall number of notaries. This grants most notaries a regional monopoly, reducing competition and driving up costs. The Economist describes the cultural divide:

Notaries are important gatekeepers in many economies, in particular when it comes to establishing property rights—the bedrock of markets. At best, notaries are facilitators who, for instance, verify the identity of the signatories of contracts and the veracity of their statements. At worst, they are overpaid bureaucrats who delay the passage of simple transactions and bloat their cost.

By contrast, notaries are unknown in many common-law countries, such as Britain and its former empire, which take a more freewheeling approach to contracts. America is the odd country out: although its legal system is based on common law, it boasts 4.8m notaries, many part-time. Yet these exist mainly to satisfy America’s maddening appetite for stamps and seals, and have little in common with their highly qualified European namesakes. “They are butchers, bakers and candlestick-makers,” scoffs a European notary.

Both traditions have their drawbacks. In Europe notaries’ highly regulated work has made them the most prosperous of lawyers. Tax returns suggest that Italian notaries are paid better than any other professionals (though perhaps they are most honest about their earnings). A report in 2004 found that notaries made up 22 of Slovenia’s 100 highest earners. French ones are the most privileged of all, says Gisela Shaw, an expert on the profession. They can compete with solicitors to provide legal services. They may sell their practice when they retire.

A website on French property law notes:

With about 5,000 offices, 7,500 notaires and 40,000 assistants, the notarial profession has representation all over France and has an effective monopoly. The Notaire is the public official responsible for receiving all the "actes" and contracts to which the parties wish to confer the seal of authenticity, to assure their date, to hold them in trust and to deliver authentic copies of them.

The Notaire is under the authority of the Minister of Justice (Ministère de la Justice) and is appointed by decree. The Notaire's office (Etude) depends geographically on the area in which he lives.

So the status Jérôme enjoys result from the fact that he is a member of perhaps the most privileged group in French society: lawyers who have gained a coveted notary position. One of Jérôme's first lines of defense is that people are always starting rumors about him because they envy his wealth and social status, which explains why people are circulating unfounded rumors about his involvement in the murders.

It doesn't happen often, but there you have it: an instance in which comparative-law knowledge deepens your understanding of art!

Melania Wasn’t “Sad”, She was Slavic

During Donald Trump's inauguration, his Slovene wife Melania looked sober and serious most of the time. This has led Americans to believe she was sad, depressed, horrified, anguished, perhaps even trapped in an abusive relationship.

What these slightly fatuous Americans don't understand is that the European conception of personal dignity and institutional respect demands that public figures taking part in official ceremonies look serious at all times. In Europe, there is no penalty for looking stiff, even scowling, during official ceremonies; that's expected. There can be a significant penalty for a smile, or for any sign of levity. So everyone plays it safe and refrains from all except fleeting smiles.

Let me make my point with pictures of Supreme Courts. First, the American:

US Supreme Court

By my count, we have a whopping six smiles: the entire back row (Sotomayor, Breyer, Alito, Kagan) and two in the front (Roberts and Kennedy). Justice Scalia, the balding Italian man sitting next to the black guy, is wearing a sort of half-smile. Justice Thomas, the black guy, is wearing an angry scowl, his resting face, which seems out of place in this photograph, but would be perfectly normal in Europe.

Justice Ruth Bader Ginsburg, on the far right, seems to be cringing in terror. In fact, she seems to be looking at the same thing which has attracted Justice Thomas' attention. Maybe this photo was taken just seconds after the naked knife-wielding maniac broke into the photo studio screaming about CIA mind control: so far, only Thomas and Ginsburg notice him. Fortunately, he was tased by security before he could reach the Legal Minds.

Anyhoo, where was I? Oh right, facial expressions. Since Melania is Slovene, here's the Slovenian Supreme Constitutional Court:

Slovene

The first thing you notice about this official picture from the Court's website is how shitty it is. It's only 71 KB in size, and 60% of that is the surroundings. The picture is so crappy that if you zoom in to try to see whether any of the Justices are smiling, their faces devolve into pixelblurs. You get the definite impression that the Justices probably thought the entire idea of having their picture taken is a ridiculous waste of time, and tried to make it as unrevealing as possible. Nevertheless, I think we can still safely say: no open-mouthed smiles, possibly a mild expression of amusement on the woman in the center's face. That's all.

Bundesverfassungsgericht-senat_2

Here's the Second Senate of the German Federal Constitutional Court. Two open-mouthed smiles, the rest tight-lipped neutral expressions. Here's the First Senate:

Bvg_senat_1_2010

One open-mouthed grin. I can't even find a decent group photo of the French Court de Cassation (which has 85 members divided into a bunch of different groups), but the individual photos of the group leaders here (f) feature no open-mouthed smiles I can find.

And just to round things out, the European Court of Justice:

RTEmagicC_European-Court-of-Justice-Members-2013.jpg

A few smiles, a few scowls, but mostly neutral, purposeful expressions.

And in this particular respect, Slavs seem to be even more serious and scowly than Western Europeans. Here's the Polish Constitutional Tribunal:

Members-of-Polands-Supreme-Court

Being a Slav, as they say, is serious business.

So Melania wasn't "sad", you chirpy, fleering American flibbertygibberts. She was just showing respect by adopting a serious Slavic scowl.

Germans Ignore Dying Man in Bank Despite Law Telling them to Help

Inore

The police in Essen reported (g) on a case in which an 82-year-old man collapsed to the floor of a branch bank in Essen, Germany in early October. At least four people were seen on security cam footage simply walking over his body without offering help or calling an ambulance. The man was eventually taken to a hospital, where he later died. The police are now investigating these persons for failure to render assistance, which is a crime under German law. Section 323c of the Penal Code:

Whosoever does not render assistance during accidents or a common danger or emergency although it is necessary and can be expected of him under the circumstances, particularly if it is possible without substantial danger to himself and without violation of other important duties shall be liable to imprisonment not exceeding one year or a fine.

In common-law countries such as the United States, the law imposes no duty to rescue strangers. As long as you didn't cause the emergency and the bear no special duty to the victim (as a guest or relative, etc.), the law will not punish you for ignoring him. There are a number of justifications for this doctrine, both theoretical (you can't be held responsible for injuries you didn't cause), and moral (the state should trust its citizens to do the right thing uncoerced).

This is one of the most obvious differences between common-law systems and civil-law systems such as the ones in most European countries. When I was teaching, many of my German students professed to find the common-law doctrine shocking or cold-hearted. It's not hard to detect the attitude behind this: the still, small voice in every German's head which whispers: "Despite the recent unpleasantness, Germany is a more decent, moral, caring and sensitive society than all others in the world, except maybe Sweden, but at any rate definitely more caring and 'social' than the selfish, dog-eat-dog United States."

Am deutschen Wesen…*

The students assumed that the existence of a law requiring help made Germany a more caring place, and that it affected Germans' behavior toward one another. This is another typical German attitude — the notion that once a law has been passed to address a problem, the problem no longer exists.

Alas, I had to shatter their precious smugness idealism.

Studies show that 'duty to rescue' laws have no effect on whether people rescue their fellow humans in need. In the United States, where the law says you don't have to try to rescue people, a huge majority does exactly that, often risking their own lives:

As Table 3 reflects, there are approximately 1003 non-risky rescues (cell 2) and 263 risky rescues (cell 4) per year in the United States. Thus, verifiable rescues outnumber non-rescues by almost 800:1. If one loosens the standard for rescue only slightly, to encompass instances of rescue that were reported in a newspaper but did not pass initial screening by the Carnegie Hero Trust Commission, the ratio increases to approximately 1400:1.

Approximately 100 Americans lose their lives every year as a result of attempting to rescue someone else. Thus, even in the absence of a duty to rescue, deaths among rescuers outnumber deaths attributable to non-rescue by approximately 60:1 every year. Stated differently, there are six times as many rescuer deaths every year as there are deaths attributable to non-rescue in the past ten years combined.

Finally, injury is common among rescuers. Aggregate figures are unavailable, since most of the data sources did not separately track injury, but in those that did and as detailed below, a substantial percentage of risky-rescuers and a significant number of non-risky rescuers were injured – sometimes quite severely.

This isn't to say that Germans are more cold-hearted than Americans. Why, just five days ago, a staff member on a German Rhine cruise ship jumped into the cold water to rescue a woman who had fallen off a bridge into the Rhine (g).

The point is first, that law on the books, as usual, has little to do with what happens in the real world. Second, that laws drafted by tiny commissions staffed by elites (such as law professors) and then passed word-for-word by the national legislature do not necessarily reflect "the values of our civilization".

Points worth remembering!

*For German speaking readers, this short German phrase conjures up a universe of associations. For my non-German-Powered™ readers, here's a brief explanation. The words come from a paraphrase of a line in a 19th-century poem by the nationalist poet Emanuel Geibel: “Am deutschen Wesen soll die Welt genesen”. This roughly translates to "German values shall cure the world." I.e. shorthand for a particularly pompous notion of German national superiority.

This wasn't Geibel's original meaning. His original poem "Germany's Vocation" (from which the phrase is adapted), was meant as a rallying cry to the various small German-speaking principalities to unify themselves into a single German state. This unified state would then synthesize the best customs and political ideals of all the individual duchies and statelets into a new political organization capable of protecting German interests and encouraging healthy and moderate customs among the German people.

Ever since the phrase was misused by Kaisers and dictators, poor Geibel's been associated with German nationalism. This is the same fate as the phrase "Deutschland über alles" (Germany above all). It was originally a rallying-cry for German unification — i.e., let's stop putting the needs of our small local community first and unite to put the needs of the German-speaking peoples as a whole first, by unifying into a single, strong country.

So much misunderstanding of Germany comes from the fact that people don't know that modern Germany only emerged from a dizzying patchwork of small states into a national entity in 1871. And that this process took decades, was extremely controversial, and that the people in favor of unification were among the most progressive and liberal forces in society.

America: Politically Correct, and Politically Free

FT_16.10.15_Freedom-of-Expression

Pew research looks at the level of support for free speech across the globe and finds that it's highest (according to their measure) in the U.S.:

Enshrined in the Bill of Rights, free expression is a bedrock American principle, and Americans tend to express stronger support for free expression than many others around the world. A 38-nation Pew Research Center survey conducted in 2015 found that Americans were among the most supportive of free speech, freedom of the press and the right to use the internet without government censorship.

Moreover, Americans are much more tolerant of offensive speech than people in other nations. For instance, 77% in the U.S. support the right of others to make statements that are offensive to their own religious beliefs, the highest percentage among the nations in the study. Fully 67% think people should be allowed to make public statements that are offensive to minority groups, again the highest percentage in the poll. And the U.S. was one of only three nations where at least half endorse the right to sexually explicit speech. Americans don’t necessarily like offensive speech more than others, but they are much less inclined to outlaw it.

To get a summary measure of support for free expression around the world, we built an index based on five survey questions about free speech and three about free media. Using this measure, Americans emerge as the biggest supporters of free expression among the 38 nations studied. And unlike so many other issues in the U.S., wide open, free-ranging public debate has an appeal across party lines. There are relatively few differences between Democrats, Republicans and independents when it comes to free expression.

However, there are some important generational differences on this issue. For instance, 40% of U.S. Millennials think the government should be able to prevent people from making statements that are offensive to minority groups, compared with 27% of those in Generation X, 24% of Baby Boomers, and just 12% of Silent Generation Americans. Nonwhite respondents (38%) are also more likely to hold this view than whites (23%).

Apart from debates over whether offensive language should be legal, most Americans believe people are just too easily offended nowadays. In a 2016 Pew Research Center survey, 59% agreed with the statement “Too many people are easily offended these days over the language that others use,” while only 39% said “people need to be more careful about the language they use to avoid offending people with different backgrounds.”

Yet another stereotype of American society down the drain. Germans consider America to be the homeland of political correctness, the dastardly censorship of controversial views which is spreading like a virus into German society. This impression, like so many others, is created by selective German news coverage. Most Germans still unthinkingly rely on the mainstream media to decide what it's important to know about the United States.

Which they do, according to their own narrow, nearly-identical criteria, determined by the tastes and preferences of educated urban haute-bourgeois Germans. And they have decided, for reasons which would be interesting to know, that Americans are afflicted by the worst case of political correctness on the globe. Journos pounce on every story showing the excesses of politically-correct scolding in the United States. 

Yet what Pew shows us is that Americans likely have the highest tolerance for offensive speech of anyone in the world.

The problem here is one of definition. Political correctness as a tendency of private persons in civil society to denounce someone's remarks, or Halloween costume, or state flag as offensive. There is a lot of that sort of thing in the United States. And there is certainly some chilling effect on college campuses, which are full of people whose job is essentially to have opinions.

Yet in another way, America is much more free than all other nations on earth. The Constitution and American culture prevent the government from punishing offensive speech to a greater degree than anywhere else. In America, the government cannot pre-emptively stop a newspaper from printing offensive speech, or stolen secret documents. Publications generally cannot be seized after they're printed. Ordinary citizens may advocate violence, deny the Holocaust, use ethnic slurs, and espouse racism without fear of government intervention. (As long as these are words alone — you can still be punished for actions such as workplace discrimination or bias-motivated hate crimes). You can neither be punished by the government nor sued for money by a private citizen for an insult, not matter how vicious or crude it is. You can protest at the funeral of a soldier with signs which insult "fags" and say "Thank God for Dead Soldiers".

God-hates-fags

In almost all other countries on earth, any one of these actions or statements could expose you to criminal prosecution by the government or an order to compensate victims with money damages in civil court. Not in the U.S. And, as the Pew survey shows, the majority of Americans approve of this state of affairs. Even millennials, the most PC group of them all, are not clamoring for restrictions on free speech.

So in the United States, if you say something quite rude and non-PC, you may be castigated on Twitter and denounced by your audience.

If you say the same thing in many other countries, you could be hit with a government-imposed fine or civil damages verdict. Perhaps even a prison sentence.

The amount of politically-correct scolding in a country has no relation to the level of genuine freedom of expression. After all, politically-correct scolding is freedom of expression. The U.S. is a hotbed both of political correctness and of free speech.

Violent Crime is More Common in Europe than the USA

An interesting 2011 paper looks at crime rates since 1970 in the United States and 8 major European countries. The authors, mostly Italian, come to a conclusion that will surprise many people: Europe has become more dangerous than the United States: 

In 1970 the aggregate crime rate in the seven European countries we consider was 63% of the corresponding US figure, but by 2007 it was 85% higher than in the United States. This striking reversal results from a steady increase in the total crime rate in Europe during the last 40 years, and the decline in the US rate after 1990. The reversal of misfortunes is also observed for property and violent crimes.

A few charts:

Crime Rates in the USA and Europe Violent crimes usa europe
An important caveat is that these numbers exclude homicide. The US homicide rate is currently 3-4 times higher than in most European countries. As I've pointed out, this fact is due mostly to two factors: the extremely high rate of black-on-black homicide in the US (52% of all persons arrested in the USA for homicide are black), and of course the wide prevalence of guns in the USA.

Homicide is actually not terribly relevant to public safety. It's much more rare than all other violent crimes, and is overwhelmingly concentrated among certain subgroups. Most homicides occur within an existing relationship, and many others occur among criminal subgroups such as gangs or drug users. The chance of an ordinary European or American being murdered by a stranger in a crime of opportunity is infinitesimally small.

As for general background violence in society, Europe is, statistically, more dangerous. It's interesting to speculate about why this might be. I suspect mass hooligan confrontations between football fans probably plays some rule: Every weekend there are dozens of unruly confrontations between rival football fans which may generate dozens of arrests at once. But still, these have been going on for quite a while.

The authors of the study perform statistical analyses to try to determine why European crime has increased. They do not identify immigration as a significant factor, although they say this is mainly for lack of data. The one factor they do identify as significant is length of incarceration. They argue that Europe's comparatively lenient criminal-sentencing regimes help to explain the crime increase. They find that length of criminal sentence does have an effect on crime rates, and suggest that Europe should increase prison sentences.

At the end of the day, the universal rule for all developed societies holds: crime is concentrated among poor and minority areas, and if you avoid these, your chances of being the victim of a violent crime are minimal. But still, anyone who praises Europe as safer than the USA needs to update their stereotypes.

Why is German Immigration Policy the Solution to Albania’s Domestic Problems?

I have already pointed out that Elisabeth Raether's front-page article in this week's Die Zeit contains a factual error. But what about the rest of her argument?

Let me sumarize it. Raether points out that the Federal Migration Ministry has gotten 5,000 applications for asylum from Albanian migrants since July, and has not granted a single one. As we know by now, since Die Zeit apparently doesn't fact-check its articles, we can't really take this for granted, but let's assume it is accurate.

Raether notes that at the upcoming migration summit, Germany may declare Albania a 'secure country of origin,' which would make it easier to process asylum applications and deport those who have no grounds for asylum. She argues that this should not happen, because Albania has 'deficiencies in the rule of law', which after all explains why it has yet to be accepted into the EU. She argues that the 'biggest problem' for Albanian women is the Kanun, an orally-transmitted body of customary law that 'for simplicity's sake' can be called Albanian sharia. According to Raether, under Kanun law, women are treated as 'nothing more than a tube through which goods can be transported.' Important components of Kanun, she states, include 'blood revenge, forced marriage, and taking the law into your own hands'.

So far, Raether has not provided no citations to proof for any of these assertions.

She then moves on to state that Albania had no laws against domestic violence until 2012. This is false. But even under this (not-so-new) law, Raether claims, there are rarely consequences for wrongdoers, since women frequently withdraw their request for protective orders. The Albanian government does not adequately protect its citizens from human traffickers, and Albanian women are being forced into prostitution. So many female fetuses are being aborted that the sex ratio of society has seen lasting changes.

Still no proof for any of these assertions. Nor does she provide numbers to quantify how serious a problem human trafficking or domestic violence is in Albania.

Finally, Raether gives a source for these assertions: We should 'listen to Albanian women' applying for asylum. She claims that Belgium did so, and decided to revoke Albania's designation as a secure country of origin and even before that granted 17.2% of asylum applications. Germany already recognizes threats of violence from family members as a valid ground for asylum, but is not taking this responsibility seriously.

So that's the argument. Let me point out the problems with it.

First, uncorroborated first-person narratives from persons currently involved in a legal proceeding in which they have a strong incentive to exaggerate threats to them are not reliable evidence, period. Saying that immigration policy should be based on trusting these narratives is like saying that you should judge a criminal-justice system by how many prison inmates claim they are innocent.

Second, Raether says we can't consider Albania a safe country of origin because it's not in the EU yet. But of course there is no either-or here, virtually all countries in the world are in the category of neither EU members nor unsafe countries of origin. There are literally hundreds of reasons a country might not be a candidate for EU membership (infrastructure, fiscal policy, foreign policy) that have nothing to do with whether it's a safe place to live.

Raether says the main reason Albania isn't in the EU yet are problems with the rule of law. Although she doesn't cite any proof of this, it could well be true. The obvious response is that Albania should improve its performance in this regard. Should the European Commission help? Perhaps so. And in fact it is: By granting Albania € 320 million in assistance from 2014 to 2020 devoted to improving governance, democracy, and the rule of law.

€ 320 million.

And that's only half of the entire IPA (Instrument for Pre-accession Assistance) II EC spending package for Albania in 2014-2020, which has a total of € 650 million. And as the name indicates, IPA II is the successor to IPA I, another huge EC aid package which ran from 2007 to 2013.

Now is all of this money going to effective programs? Of course not, we all know there is some corruption and inefficiency in government aid packages. But € 320 million is a lot of money. And Albania has made significant progress in recent years. Of course, that progress is slow, and politicization and corruption of the public sector (pdf) are still big problems, as they are for most countries in that part of the world. And there is a distorted sex ratio (pdf) in Albania. And there are still some blood feuds in Albania, a favorite subject for the Western media.

But the key question is this: why is German immigration policy a good response to Albania's domestic deficiencies? The existence of an informal quasi-feudal code of conduct among a small proportion of Albanians is not Germany's problem. The weak prosecution of alleged domestic abuse in Albania (we're not told exactly how prevalent it is) is not Germany's problem. The preference of Albanians for male children is not Germany's problem. The continuing existence of corruption in Albanian domestic politics is not Germany's problem. These problems exist to some extent in dozens of countries all over the globe.

In fact, these problems exist in EU countries. A recent study documented domestic violence all over Europe (g) and identified what the authors consider to be inadequate legal protections for victims, including in Germany. In fact, Germany itself (g) does not have a special section of its criminal code directly addressing domestic violence. Germany, like Albania before 2007, prosecutes abusers under normal criminal-code provisions that apply to everyone, such as assault, insult, etc. Besides getting the date wrong, Raether never explains why Albania should be condemned for waiting too long to pass a law that Germany has yet to see the need for.

And in any case, the phenomenon of women withdrawing domestic-violence complaints and men getting off with light punishments is universal, also in many EU countries. This problem indicates a need for better enforcement methods. It does not indicate that the entire country is unsafe.

In any case, Albanian problems are all overwhelmingly internal to Albania, just as India's skewed sex ration is internal to India. If they are ever solved, it will be by cultural changes within Albania. The outside world can perhaps play a limited role in encouraging these changes. Which is precisely what the outside world is doing right now, by providing billions of euros in assistance and massive outside diplomatic pressure to Albania. I think that approach is likely to be a lot more effective than tinkering with Germany's immigration laws.

German Prisons ‘Astonish’ American Visitors

A delegation of Americans just visited several German prisons this year and came back impressed:

Earlier this summer, we led a delegation of people concerned about the United States criminal justice system to visit some prisons in Germany and observe their conditions. What we saw was astonishing.

The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers. They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.

But for all the signs of progress, truly transformative change in the United States will require us to fundamentally rethink values. How do we move from a system whose core value is retribution to one that prioritizes accountability and rehabilitation? In Germany we saw a potential model: a system that is premised on the protection of human dignity and the idea that the aim of incarceration is to prepare prisoners to lead socially responsible lives, free of crime, upon release.

The process of training and hiring corrections officers is more demanding in Germany. Whereas the American corrections leaders in our delegation described labor shortages and training regimes of just a few months, in the German state of Mecklenburg-Western Pomerania, less than 10 percent of those who applied to be corrections officers from 2011 to 2015 were accepted to the two-year training program. This seems to produce results: In one prison we visited, there were no recorded assaults between inmates or on staff members from 2013 to 2014.

In Germany, we found that respect for human dignity provides palpable guidance to those who run its prisons. Through court-imposed rules, staff training and a shared mission, dignity is more than legal abstraction.

The question to ask is whether we can learn something from a country that has learned from its own terrible legacy — the Holocaust — with an impressive commitment to promoting human dignity, especially for those in prison. This principle resonates, though still too dimly at the moment, with bedrock American values.

At conferences the question often comes up whether the dedication to 'inviolable' human dignity that starts the German constitution has real meaning. The prison example shows it does, in my opinion. Nevertheless, many English and American lawyers claim that human dignity is not a meaningful legal value. Justice Thomas, a black conservative justice who voted against gay marriage, explained:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

One American law professor even cautioned readers concerning the 'danger' of human dignity:

The word dignity eludes narrow definition, or for that matter, any generally agreed upon definition. The Court itself has not provided a clear definition of dignity. One scholar, William A. Parent, declares, “[D]ignity is to possess the right not to be arbitrarily and therefore unjustly disparaged as a person.” In another article on “the Jurisprudence of Dignity,” Leslie Meltzer Henry writes that there is no single definition, but that dignity includes various conceptions including institutional status, equality, liberty, individual integrity, and collective virtue. She concludes, “dignity’s conceptions and functions are dynamic and context-driven.”

If dignity is defined so elastically, then conservatives judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my [sic] language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians. What courts would do when confronted with the clashing dignitary rights of the religious wedding photographer and the gay couple, or the hunter and the victim of gun violence, is anyone’s guess, because dignity is such an abstract concept that its boundaries are difficult to discern.

I find the different attitude toward 'dignity' pretty interesting and have written about it in a few contexts, but I'll spare you the boring details. It's the kind of issue that, to do it justice, requires you to lay down a bunch of ground rules, collect historical examples, and carefully delimit your claims with a bunch of caveats. In other words, to write like a boring academic. If that doesn't deter you, head on over to my academia.edu page. But don't say I didn't warn you. 

You Cannot Film the Police in Germany

The German press is fascinated and disturbed by videos of American police using excessive force, like the one above.

Why do these videos exist? Because in the United States, it is every citizens' constitutional right to film the police doing their job unless they are interfering with police work:

Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.

Police often tell people to stop filming, but those cops don't know the law. Unless the videos are obscene, you can post those videos to the Internet with full constitutional protection, and that's exactly what people do. They are then played over and over on German websites.

Can you film cops arresting people in Germany and then post that video straight to the Internet? The short answer is: absolutely not. The somewhat longer answer is: Sure, you can do it, but you could well be sued for tens of thousands of Euro, and have to wait for a court decision about whether the public interest in publishing the video was stronger than the privacy rights of the people displayed.

The crucial background to know about this issue is that German law gives people powerful protections over the use of their own image and voice and the protection of their privacy — legal protections which most Germans appreciate, and which don't exist to anywhere near the same extent in the US. The question then becomes whether police officers doing their jobs in public enjoy these same protections. Many German courts have held that they do.  

Marvin Oppong, a journalist for the 'torial' (g) blog in Germany who wanted to film his own questioning by police decided to look into the matter in detail. He interviewed several lawyers nad journalists. Here's a summary of what he learned:

  • Can you take pictures of the police? German courts are all over the place on this issue. Some say this is basically allowed in public spaces. It also depends on where. Inside buildings such as train stations you may be prohibited from doing so because of station rules. According to other decisions, the police can also request that you delete the photos or promise not to distribute them in any way or they will sue civilly. 
  • Can you video record your own encounters with the police? Yes, unless it interferes with their work. However, you may face civil or criminal liability if you distribute the results in any way without the officers' consent, since they have a right to control the distribution of their own image. Recording their voices is only permissible in a 'completely open and public' situation. If that is not the case, then simply recording their voices is actually a crime bringing up to three years' imprisonment. You read that right: if the situation is not deemed public (whatever that means), merely recording someone's spoken words is itself a crime. If the policeman knows you are recording his voice and doesn't object, that may be a defense. 
  • Can you publish photos and videos of a police encounter on the Internet? No: German courts have held that publishing videos of a police officer's conduct on the internet creates a 'pillorying' effect that violates the police officer's right to the protection of his personality (Persönlichkeitsrecht in German). This is so even though you are filming the officer doing his or her job in public. You may be able to publish general photos of public events, but a photo that clearly focuses in on one officer will violate that officer's right to control over the distribution of their own image. Which means you will need the officer's permission to publish it.
  • Can police ask you to identify yourself if they see you filming them? Basically, yes. They can also bring you to the police station for questioning if you don't have any personal ID with you.
  • Are the rules different for journalists? Possibly. If they are filming an incident of public importance, they may be able to claim that their right to do their job outweighs the officers' rights.

So, to sum up: if you are a private citizen and see German police officers engaging in questionable conduct in public and post a video of that in the Internet — as Americans do hundreds of times every day — you will enter a legal minefield of contradictory court precedents. You will probably expose yourself to tens of thousands of euros in damages as well as possible criminal prosecution. Your only hope is if a court, in your specific case, finds that the public interest served by your publishing the video outweighed all of the restrictions German law places on taping and photographing people. Even police officers doing their job in public.

Projection and Discrimination

The reason I'm posting a lot about criminal justice stats recently is first because I find it interesting but also because I'm working on a piece about German (and perhaps also French) coverage of crime in the USA. 

Specifically, and not to put too fine a point on it: (1) the fact that German reporters, out of ignorance or prejudice, use bogus statistics to exaggerate claims of discrimination in the American justice system; and (2) the reason for this is projection: ("a theory in psychology in which humans defend themselves against unpleasant impulses by denying their existence in themselves, while attributing them to others. For example, a person who is rude may constantly accuse other people of being rude.").

Specifically, the thesis is that German and French journalists are (whether consciously or not) distracting their readers from the problems in their own criminal justice systems by projecting discrimination onto the USA. I don't know, that formulation's pretty edgy, but sometimes edgy is fun!

Still in the research phase, but I'll let you know if I can get a German press outlet to publish it.

The Necessary Context on Black Crime Rates

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The mere fact that blacks are overrepresented in American prisons relative to the population does not even come close to proving the American justice system is racist, because:

One of the most well-known statistics pertaining to the criminal justice system is that a disproportionate amount of African American males are arrested, convicted, and incarcerated. Although the precise estimates vary across studies and reports, in general African American males are arrested at a rate (relative to their proportion of the population) several times that of White males, with these racial differences being quite robust across a wide range of offenses, including property offenses and drug-related offenses (Cooper, Fox, & Rodriguez, 2012; Peterson, 2012; Sampson & Wilson, 2005; Steffensmeier, Feldmeyer, Harris, & Ulmer, 2011; Tonry, 2010). This disparity is even more pronounced when examining the most serious and violent types of criminal acts (Chan, Myers, & Heide, 2010; D’Alessio & Stolzenberg, 2003; DeLisi, Dooley, & Beaver, 2007; Gabbidon, Higgins, & Potter, 2011; Tapia, 2010; Tillyer & Hartley, 2010; Tonry, 2010). In short, no matter how the data are cut, no serious criminologist, sociologist or any other academician interested in the topic can deny that African American males are much more likely to be processed through the criminal justice system than are White males.

Where opinions differ sharply, however, is in regard to the exact mechanisms that predict disparities in criminal justice processing. While several causal pathways have been proposed, the explanation garnering the most attention from scholars is that of a racially biased justice system (Kennedy, 1997; MacDonald, 2003; Wilbanks, 1987). More specifically, the null hypothesis, so to speak, has been that of a system which unduly targets racial minorities, especially African Americans. Certainly there is evidence pertaining to the increased likelihood of African American males (in particular) being stopped, questioned, arrested and ultimately sentenced by the criminal justice system (Blumstein, 1982; Carmichael, 2010; Kennedy, 1997; Peterson, 2012; Tonry, 2010; for some dissenting evidence, however, see Franklin, 2010, as well as, Tracy, 2002).

This is the introduction to an article with the self-explanatory title: No evidence of racial discrimination in criminal justice processing: Results from the National Longitudinal Study of Adolescent Health, published in the peer-reviewed journal Personality and Individual Differences. Many commentators seek to explain higher crime rates among American blacks as a product of discriminatory enforcement, so the authors decided to look at self-reports of behavior given as part of a huge anonymous US federal study. They found that self-reporting closely tracked official crime statistics. The authors of course note that self-reporting has limitations, but they observed that (1) since the study was anonymous, participants were unlikely to be distorting their answers to influence peers, and (2) in any case, people asked to report on their own antisocial behavior consistently understate it, for reasons that should be obvious to everyone.

Nevertheless, the amount of criminal activity reported by blacks was largely in line with statistical evidence of higher proportions of blacks being processed through the justice system. I wouldn't go so far as to absolve the US criminal justice system of all discrimination, but merely citing the over-representation of one group in US prisons without this vital context is misleading and German journalists should stop doing it. Nor, for that matter, should American journalists conclude from the fact that 27% of all German prisoners are foreigners (g) that the German criminal justice system is biased.

American Law Professor Wants to Keep the Death Penalty

The perennial question from Europeans: Why does a 'civilized' nation like the USA hang on to a barbaric punishment like the death penalty? If I am in the mood, I reel off my 5-pronged answer (sometimes I miss a prong or add a few, depending on level of drunkenness).

One of those prongs is that in Europe, the entire law professoriate, and the entire educated class, is uniformly against capital punishment, with trivial exceptions. They act as elite opinion gatekeepers, making sure no pro-capital punishment arguments are ever aired in the mainstream media. Even Germany's leading tabloid, Bild, has always been against capital punishment.

Not so in the USA. Staying with the New York Times, here's an op-ed from William Baude, an assistant professor of law at the University of Chicago. He's commenting on a recent court decision, Glossip v. Gross, in which liberal Justices Breyer and Ginsburg advocated abolishing the death penalty in the USA: 

Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.

We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.

If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.

Note that Baude himself never states his own preferred position on capital punishment, except that it should be 'left to the states of the people'. A German law professor might well consider this pusillanimous, but of course you could also call it admirably restrained.