In the years preceding its political reunification, Germany experienced benefits brought about by the gradual judicial adoption of alternative sanctions. From about midcentury, the emphasis on imprisonment, or, in the case of youthful offenders, jungendarrest (a short-term incarceration lasting from 2 days to 4 weeks), gave way to alternative measures: suspensions, probation, community service, and a system of day-fines instituted in the 1970s. Between 1982 and 1990, incarceration of juveniles decreased more than 50 per cent — from 9,500 to 4,500 cases; during the same period, adult imprisonment dropped from 39,000 to 33,000.
Research in Germany indicates that youthful offenders sent to prison had higher rates of recidivism than those given alternative sanctions. Removing youths from society — even when incarceration included job training — appeared to negatively affect their ability to find employment when released. Among youths who received alternative sentences, rates of recidivism were affected by judges' and social workers' attitudes and communication abilities. Low recidivism rates were positively correlated with officials' beliefs in their clients' rehabilitation and their ability to communicate supportively with offenders.
Effects of imprisonment
Studies conducted by the Criminological Research Institute of Lower Saxony explored individual and regional disparities in sentencing and sought to determine the effects of sentencing practices on offending patterns and career criminality. Results showed that the number of offenders per 100,000 inhabitants increased by 7 per cent in regions where imprisonment was the sentencing norm and decreased by 13 per cent in regions that opted for alternative sentencing. Although unable to establish a cause and effect relationship, researchers also found a correlation between the decline in imprisonment of young offenders over a 4-year period and a significant drop in cases of burglary — a crime viewed as a barometer of societal violence, typically committed by those well along in their criminal careers.
In another study, researchers looked at what happened to young offenders imprisoned in the 1970s. Although prison combined with job training was thought to be a promising rehabilitation, the recidivism rate for young offenders in the early 1980s was between 70 and 80 per cent. Although only about 40 per cent were unemployed when they committed the offenses that resulted in incarceration, within 3 months of release, offenders' unemployment rate was 60 per cent. In spite of intensive job training and good intentions, prisons were believed to destroy post-release opportunities for normal living.
In another study, interviews with juveniles found that the strongest deterrents to crime for most youths were fear of being caught by the police and the negative reactions of parents and society. Fear of punishment was not mentioned by these youths as a factor militating against criminal behavior.
These findings suggest that when youths are imprisoned for offenses, they are more likely to later embrace criminality than are young people given alternative sanctions. As a result of these studies, judges began to avoid giving prison sentences to the extent possible.
The role of the judiciary
In Germany, judges have lifetime appointments and are the sole arbiters in the disposition of cases involving youthful offenders between the ages of 18 and 20. These offenders may be dealt with under adult or juvenile law, but most judges prefer the latter because it offers multiple options and wider sentencing discretion. For example, under juvenile law, a judge has the latitude to issue a community service order to a youth convicted of homicide, if mitigating circumstances are found.
After reviewing some 2,000 case dispositions, researchers assigned judges to one of two groups: "authoritarian" judges and "liberal" judges who were deemed more communicative, more positive in their expectations of offenders, and milder in their sentencing approach. Social workers who were responsible for monitoring community service sentences were similarly categorized. The rates at which offenders disobeyed judicial orders were analyzed according to the type of judge and social worker involved in their cases:
- In cases where both the judge and social worker were liberal, offender disobedience was 6.5 per cent.
- In cases where the judge was liberal and the social worker was authoritarian, offender disobedience was 11.3 per cent.
- In cases where the judge was authoritarian and the social worker was liberal, offender disobedience was 14.4 per cent.
- In cases where both the judge and social worker were authoritarian, offender disobedience was 27.3 per cent.
Social workers were also asked to predict outcomes for their clients before they began serving their sentences: liberal social workers had positive expectations, while the authoritarian types predicted failure. In general, offenders' behavior correlated with social workers' attitudes. Recidivism rates were similarly affected; for example, of 426 cases reviewed in which the offender was under the age of 20, sentencing by liberal and authoritarian judges resulted respectively in 23.9 and 33.5 per cent recidivism.
After Munich's judiciary was informed of these research findings, the judges engaged a psychologist to observe and analyze their on-the-job attitudes, behavior, and demeanor. Some judges modified their behavior, while others switched from criminal to civil law. Subsequent widespread dissemination and publication of these research results effected further change in Germany's sentencing policies and practices. A close collaboration among community groups, social workers, police, prosecutors, churches, academia, and the judiciary produced alternative programs — often financed through fines imposed on offenders — that emphasized a holistic approach to corrections and productive social worker/client relationships.
Other research findings reveal that, contrary to supposition, the increased presence of females within the legal and criminal justice professions had no impact on the decarceration movement. The first women entering these arenas were as punishment-oriented as men. However, further research has shown that female law students (now numbering around 50 per cent of the class) are generally less punitive than their male counterparts. As the proportion of female to male practitioners grows, imprisonment rates may be affected.
German researchers are planning investigations into several areas of criminal justice, including victim surveys to uncover pockets of unreported crime, such as family violence and protection rackets; prisoner studies, with scheduled follow-up, to gain insight into the prison experience and learn how agencies formed to help ex-prisoners are functioning; police surveys to explore how officers handle and define crime; and analyses of data from blind questionnaires on police violence.
The German system of criminal justice, characterized by judicial immunity to politics and close relationships between criminologists, judges, and prosecutors permits objective investigations into criminal justice problems and practices. It also permits criminal justice professionals to affect public policy. For example, when politicians wanted to change the law to increase mandatory imprisonment of juveniles, 153 German judges and prosecutors publicly objected to the change on the bases of their experiences and research findings.
This article is based on a presentation made as part of the National Institute of Justice's Research in Progress Seminar Series by Christian Pfeiffer, Director of the Kriminologisches Forschungsinstitut Niedersachsen and president of Germany's Juvenile Court Judges organization. Copies of the entire document, "Alternative Sanctions in Germany: An Overview of Germany's Sentencing Policies" (Adobe Acrobat file), may be obtained from the Alaska Justice Statistical Analysis Unit or on the World Wide Web from the National Criminal Justice Reference Service (NCJRS) at http://www.ncjrs.org/.