Preventive detention in the German penal culture – penally moderated exclusion?

• In Event: Indefinite preventive detention across penal cultures

Abstract

Preventive detention has a long and very questionable history in German penal law: The idea goes back to Franz von Liszt’s “Marburger Programm” (1882), became part of the discussion of the International Union of Penal Law and in European penal reform projects, and was introduced in German law through the infamous “Gewohnheitsverbrechergesetz” of 1933/1934 as a part of the NS strategy to exclude (and later murder) persons whom the government considered not to be useful for society. The exclusion of persons who were considered to be dangerous repeat offenders went on after World War II in West Germany, but towards the end of the 20th century, it seemed as if preventive detention would grow out, since the number of detainees dwindled. Between 1998 and 2013, however, there has been a host of changes in the law of preventive detention that aimed at enlarging the net of social exclusion, but also at extending the principle of resocialisation to preventive detention based on jurisprudence by the German Federal Constitutional Court and the European Court of Human Rights. The presentation will illustrate the role of preventive detention in German penal law and discuss it as a strange combination of penal moderation and exclusion of the dangerous other as the dominant streams in German penal culture.

Author

• Kirstin Drenkhahn, Freie Universität Berlin