Reasons and practice of punishment – a German-American comparison

Project manager: Prof. Dr. Klaus Günther

The American and German criminal justice systems have developed in opposing directions since at least the middle of the last century and have produced two different conceptions of punitive justice. The aim of the research project was to examine these two conceptions comparatively. The aim was not to formulate and justify normative principles in order to then confront them with the reality of criminal law in each case. Rather, this research project took a reconstructive approach: Normative reasons and narratives are always already inscribed and embedded in practice; the task was therefore to locate these reasons and narratives within practice, present them coherently and discuss them critically. The following guiding questions served as orientation: What implicit ideas of criminal responsibility underlie both criminal law systems? What punishments do the respective concepts of punitive, especially restorative, justice impose? And what kind of reaction to criminal misconduct is considered just? The main focus was on the role of moral concepts of “good” and “evil”, the status of the victim of crime, and the relationship between retribution and restitution on the one hand and prevention on the other.

The project was realized in a series of essays dealing with the methodological questions of a reconstructive approach to normative orders as well as with conceptions of justice and the place that punitive, especially restorative justice occupies in them, and against this background, finally, with the comparison of both criminal justice systems.

Joshua Kleinfeld has developed a thesis, particularly with regard to the role that a moral concept of “evil” plays in both criminal justice systems, and developed it in detail in the following six argumentative steps: (1) The American system routinely and permanently locks away and excludes serious criminals, while the German system avoids this and maintains a chance for resocialization. (2) Minor offenses are interpreted there as signs of future (serious) crimes, whereas here they are seen more as misconduct due to circumstances, ultimately erroneous and therefore correctable. (3) In the USA, only the person is punished for recidivism, in Germany (predominantly) the actions. (4) In the case of those released from prison, the attribution of “residual criminality” is practiced there, whereas in Germany the criminal charge is completely eradicated once the sentence has been served. (5) With regard to the death penalty, the fundamental right to life is considered available in the USA (in that the offender voluntarily relinquishes his right to life with his criminal act), whereas in Germany the right to life is inalienable. (6) In the criminal policy discourses of the USA, voices that are convinced of the existence of (criminal) evil are heard, while such views are predominantly rejected here. As a result, Joshua Kleinfeld considers the German system to be too naïve because it denies the existence of (criminal) evil even in the most serious cases, while the US system indiscriminately understands all crime as an expression of evil and is not in a position to react in a differentiated manner, especially with regard to lesser accusations, erroneous misconduct and misconduct due to circumstances.

Another key question focused on the role of the victim in the conception of criminal justice. Here, Joshua Kleinfeld substantiated the thesis that the practice of criminal law reacts differently to the respective status of the victim and the degree of their victimization, but that this is hardly adequately justified in the theory of criminal justice. It makes a difference whether the victim of a crime is powerful or has even acted in a criminally reproachable manner, or whether he or she is a weak and innocent victim. Such unequal treatment can be justified if the moral status of an unlawful act is measured according to the vulnerability and innocence of the victim and, accordingly, if the perpetrator takes into account whether and to what extent he exploits the victim’s vulnerability and innocence in his criminal act. In this respect, the degree of victimization is relevant for a just criminal justice response, but it can also be used as a justification for an illiberal, freedom-threatening tightening of criminal law that outweighs and ultimately ignores the fundamental rights of the perpetrator against those of the victim. The latter aspect has been examined above all by Klaus Günther with a view to the current criminal policy debate on greater consideration of the victim in criminal law.

Klaus Günther has primarily investigated the concept of criminal responsibility, among other things in discussion with the theses of the American criminologist David Garland on the “culture of control”. The theory of a discourse-theoretical conception of accountability already developed in earlier publications, which takes the dual status of a citizen as author and addressee of legislation seriously, has been further developed and differentiated in this project. This includes a critical examination of the current debate on free will as the basis of criminal guilt and the question of whether and to what extent transitional justice presupposes criminal guilt.

The most important publications include:
Günther, Klaus (2012): “Ein Modell legitimen Scheiterns – Der Kampf um Anerkennung als Opfer”, in: Honneth, Axel/ Lindemann, Ophelia/ Voswinkel, Stephan (eds.), Structural change of recognition. Paradoxes of social integration in the present Frankfurt/New York: Campus, 185-248:
Günther, Klaus (2010): “Die Unordnung der Verantwortlichkeit. Kriminalpolitik im Zeichen einer Politik des Selbst”, in: Kriminologisches Journal 42, 90-101.
Günther, Klaus/ Prittwitz, Cornelius (2010): “Individuelle und kollektive Verantwortung im Strafrecht”, in: Felix Herzog/ Ulfrid Neumann (eds.), Festschrift für Winfried Hassemer, Heidelberg: C.F. Müller, 331-354.
Günther, Klaus/ Honneth, Axel (2008): “Foreword” to: David Garland, Die Kultur der Kontrolle – Verbrechensbekämpfung und soziale Ordnung in der Gegenwart, Frankfurt/New York: Campus, pp. 7-18.
Kleinfeld, Joshua (2016): ‘Two Cultures of Punishment’, Stanford Law Review, 68, 933-1036.
Kleinfeld, Joshua (2013): “A Theory of Criminal Victimization”, Stanford law Review, 65, 1087-1152.

In 2011, Joshua Kleinfeld accepted an appointment as Associate Professor of Law at Northwestern University in Chicago, Ill. He continues to work there on the above-mentioned topics, including in the form of a dissertation project with Axel Honneth, Klaus Günther and Rainer Forst on “Embodied Ethical Life”. The project has now been successfully completed. Klaus Günther is continuing his research on the above-mentioned topics in the research project of the second funding period on “Legal Normativity and Contestability”, together with Marcus Willaschek.