Life Sentences in Germany

The American penal system is plagued by a lack of coherent purposes and clear institutional accountability.  If we were interested in a model for how to do things better, Germany might be a good candidate.  I’m no expert on the German system, but I’ve just read with great interest a new paper on the way that Germany manages its life sentences.  The paper, authored by Dirk van Zyl Smit and entitled “Release From Life Imprisonment: A Comparative Note on the Role of Pre-Release Decision Making in England and Germany,” appears as a chapter in Fervet Opus: Liber Amicorum Anton van Kalmthout (Marc Groenhuijsen et al. eds., 2010).

Although the paper particularly focuses on a fascinating 2009 decision by the Federal Constitutional Court, it also provides some useful background information on the the legal framework for life sentences in Germany.  Here are some features that stand out for me.  

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Can You Grow From a “No”?

On occasion, my brother-in-law and I get to thinking about the same topic.  His venue is a weekly sermon often linked to the Torah portion, while mine is the classroom and the blog.  I had much fun talking with him last week as he wrote his sermon “Can You Grow From a No?”  and I am delighted to link to his full sermon from two weeks ago in which I am the obliquely-referenced sister-in-law.  As he said,

To be human is to be in constant negotiation with other people, and those negotiations will either end in “yesses” or in “no’s.” And because we have needs, because we know what we think we want, because we are vain and have egos, we want those exchanges to end with a “yes.” We want our cravings to be met, our opinions proven true and our positions affirmed. A “yes” brings satisfaction. Our will has prevailed, our efforts have paid off, our selves have been validated. A “yes” means we were right.

“No’s” are less fun. “No’s” signal defeat. When someone tells us “no,” we feel a little piece of us die. We are bruised and we are hurt, diminished in the eyes of others and in our own eyes.

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The New Miranda Warning

I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

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