Why is punishment good for us?

Crime and Criminal Law

Heribert Ostendorf

Prof. Dr. Heribert Ostendorf, born in 1945, worked as a judge for four and a half years after completing his studies, primarily as a juvenile judge. He then taught for eight years as a professor of criminal law at the University of Hamburg. From 1989 to 1997 he was Attorney General in Schleswig-Holstein. From October 1997 to February 2013 he headed the research center for juvenile criminal law and crime prevention at the Christian-Albrechts-Universität zu Kiel.
In addition to textbooks and legal commentaries, Professor Ostendorf has published numerous scientific treatises, especially on juvenile criminal law. His textbook "Juvenile Criminal Law" and his commentary "Juvenile Courts Act" have been published in the 9th and 10th edition and are considered standard works.

To punish is to inflict evil on purpose. If this is done by government agencies, a formal but also substantive legitimation is required. Various criminal theories offer the basis for this derived from ethics and reason.

Imprisonment does not only mean deprivation of liberty, but also the loss of private life. Cell wing in the Berlin-Tegel prison, 2017 (& copy picture-alliance, Rolf Kremming)

A criminal penalty means responding to criminal acts with deliberate harm by state organs. It is not just the punishment that is an infliction of evil; the criminal proceedings already curtail the accused's freedom and personal rights. The criminal procedure is a compulsory procedure. Even if it ends with an acquittal, the preliminary proceedings, the indictment and the - public - main hearing encroach on personal rights. Public exposure can lead to economic ruin or to the loss of social and political offices. Punishment is never good, no matter how well it is meant.

Such a state-ordered and carried out evasion requires a special legitimation, not only a formal legitimation, that is to say secured by law, but also a substantive legitimation that is derived from ethics and reason. For this purpose, so-called criminal theories have been and are being developed.

Penal theories (& copy Heribert Ostendorf)

Punitive needs

The need for punishment can be found in many areas of society. In sports, for example, violations of the rules of the game are sanctioned. According to the French sociologist Émile Durkheim (1858–1917), community consciousness demands responses when recognized norms are violated. These can be penalties, but also other measures to restore legal peace. In fact, at least after serious crimes, we encounter loudly expressed need for punishment. The deeper motives for this must remain indefinite here - whether they are fed by a natural feeling, from an acquired feeling, from rational considerations for the self-protection of the community, from powerlessness, in the absence of alternative solutions or from sadism.

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Harsh punishments don't deter - an early voice

History, experience, and knowledge of human nature contradict the view that only harsh sentences deter crime. If one had asked experience, it would have shown that nobody believes in harsh punishments and their execution, because everyone knows that in the long run such penal laws cannot be kept without cruelty; hence every harsh criminal law carries the assurance of an early repeal.

If the punishment is also carried out at the beginning, its severity calls for prudence all the more to commit the crime in such a way that no discovery is to be feared, and every citizen considers it a duty to the unfortunate who should be punished so severely , to rescue; a complaint would be out of the question, since natural shyness would keep every citizen from delivering a criminal into the hands of such a cruel judiciary; and even in the case of the testimony, because he does not want to contribute, everyone seeks to help carry out the hard law as best he can to testify for the benefit of the accused.

The state, however, not only loses the expected advantage of deterring crime, but rather, through its harsh punishment, causes more serious crimes to be committed than would otherwise have been the case, since everyone, once they know that the punishment will be severe, would rather dare to do more and satisfy his lust with a greater crime, which was also worth the effort. It was a sad misunderstanding of an obvious truth that misled lawyers and legislators; a means of deterring crime is not the severity of the punishment, but the certainty that the punishment inherent in every crime will inevitably overtake the criminal.

Hence the criminal trial is of excellent importance for the punishment, and the most expedient arrangement of the same, according to which every guilty person is most surely and most quickly overtaken by his deserved punishment, is the surest condition of the effectiveness of the criminal law.

Carl Joseph Anton Mittermaier, On the Fundamental Errors in the Treatment of Criminal Law in Text and Criminal Code, Bonn 1819, p. 54 ff.
https://epub.ub.uni-muenchen.de/11110/1/8Jus2673.pdf (last accessed November 21, 2017)

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From a psychological-psychoanalytical point of view, such collective punitive needs are channeled through punitive reactions to crimes and ultimately satisfied. Exuberant need for punishment (lynch justice) should be tamed. From this perspective, however, punishments already serve specific purposes: restoring legal peace and strengthening legal awareness. In addition, there is also an interest in satisfaction of the injured person himself. Victims of serious crimes are often better able to deal with the suffering they have suffered if they see that the perpetrators are being punished.
The individual need for punishment of the offender, his own need for atonement and satisfaction, must be distinguished from the collective need for punishment. There is a criminal theory that the point of punishment - also - is to enable the offender to process his guilt, to atone. Without an official punishment, this purification process, which is necessary for psychological stabilization - if there is a need for punishment - can hardly be carried out. According to this, the punishment is necessary for the perpetrator.

Absolute penal theory

The absolute theory of punishment denies that it is legitimate to pursue ends with punishment - punishment has to be purposeless is absolute. For the absolute theory of punishment, only the reason for a punishment is important; it does not recognize a purpose that goes beyond punishment. Immanuel Kant (1724–1804) as its most important representative formulated in the legal doctrine of his work "Metaphysics of Morals": "Judicial punishment [...] must only be imposed on him [the criminal] at any time because he has committed a crime." According to this, punishment is only imposed for the sake of pure punishment; any state or individual benefit cannot be associated with it. Furthermore, according to Kant, this ultimately means: "Even if bourgeois society dissolved with all its members in agreement (for example the people living on an island resolved to part and scatter all over the world), the last murderer in prison would have to first be executed so that what should happen to everyone for what his deeds are worth, and that the blood guilt may not be borne by the people who have not insisted on this punishment; because they can be regarded as participants in this public violation of justice. "
According to this theory, punishment no longer means the satisfaction of personal revenge or satisfaction needs, but serves to realize the ideal of justice. According to Georg Wilhelm Friedrich Hegel (1770–1831), too, the world order - after the negation of the law by the criminal act - after the punishment as the negation of the negation. Punishment is retribution for evil with evil.