Differences and Similarities between Branches of Law
Reforms of the Criminal Sanctions System in Germany – Achievements and Unresolved Problems
The German criminal sanctions system has witnessed major law reforms in the last 50 years in expanding fines (which have replaced short-term imprisonment) and introducing suspended sentences either with or without the supervision of the Probation Service. The reforms of the 1960s–1980s have been a success and (in combination with the expansion of diversion schemes for minor crimes) have contributed to achieving one of the lowest prison population rates in Europe. However, further reforms are necessary – in particular, with regard to the large number of people serving a prison sentence for defaulting on fines. Germany has, for good reason, restricted electronic monitoring to the very few cases of dangerous offenders (convicted for violent or sexual crimes) who have had to be released after having served their sentence in full or have been released from psychiatric institutions or after other preventive deprivation of liberty.
sanctions system in Germany; electronic monitoring; probation; suspended sentences; fine defaulters; fines; diversion; criminal law reforms
1. Preliminary remarks
Jaan Sootak is celebrating his 70th birthday, and I am happy to offer him my cordial congratulations at this birthday ceremony personally. We first met in the late 1980s, when I organised a conference on comparing prison systems worldwide. *2 While primarily a penal lawyer, he has remained in our network of co-operation in penology and youth justice for 30 years. *3 His achievements as a penal law reformer in Estonia are considerable, and he has always maintained a connection with German penal law jurisprudence as well as practice. I have therefore chosen as my subject the reform of criminal law sanctions in Germany. It was 17 years ago that I presented a paper at the law reform conference here in Tartu on the same issue, and I have to admit that the reform debate surrounding the criminal sanctions system in Germany continues to focus on the same problems as at the beginning of the century, and that no real will for change is visible. However, many aspects of the sanctioning practice could be seen as successes, and sometimes standstill might in fact be progress, when ideas are refused that would worsen the penal law system. I will come back to that when talking about electronic monitoring.
2. Remarks on the recent history of reforms to the criminal sanctions system in Germany
From an international comparative perspective,the German criminal sanctions system may be characterised as ‘poor’, making only a few sanctioning options available. *4 The criminal sanctions system – grosso modo – consists of fines (die Geldstrafe); suspended sentences (Freiheitsstrafe zur Bewährung), the continental European form of probation; and unconditional prison sentences (unbedingte Freiheitsstrafe). Community service (gemeinnützige Arbeit) is – contrary to most other European countries’ approach *5 – provided only as a substitute sanction in the case of non-payment of a fine (i.e., for fine defaulters). Conditional (suspended) fines are only exceptionally applicable, under highly restrictive conditions (see §59 of the StGB, Criminal Code, cited as “CC”). The name of this sanction is Verwarnung mit Strafvorbehalt (meaning ‘warning combined with deferment of sentence’), and its content is a conditional fine of up to 180 day-fine units, which can be combined with directives and obligations, including supervision by the Probation Service. Other sanctions involving restriction of liberty, such as withdrawal of one’s driver’s licence, a professional disqualification, or electronic monitoring (EM; see Section V) are provided as measures for rehabilitation and security (independent of guilt but based on an assessment of dangerousness) for dangerous offenders. EM is restricted to the very few cases of dangerous offenders who have served a prison sentence in full or who are released from psychiatric hospitals. There exists also a form of suspending the driver’s licence (Fahrverbot) for up to 6 months, which is a supplementary sentence in combination with (usually) a fine. This sentence is a real penalty. *6
Reforms promoting wider use of fines date back to the 1920s (see the so-called Law on Fines of 1923), practically the only successful law reform of the many discussed in the era of the Weimar Republic under then Minister of Justice Gustav Radbruch. The aim was to restrict the use of short-term imprisonment, which – since Franz von Liszt’s famous inaugural lecture in 1882 – had been judged detrimental to the rehabilitation of offenders. *7 The decisive change – replacing short-term imprisonment with fines – was implemented by the ‘major criminal law reform’ (Große Strafrechtsreform) of the years 1969–75. The application of prison sentences of less than 6 months was legally defined as exceptional (see §47 of the CC). In addition, the system of fines moved over from a lump sum to the day-fine system. This allowed rightful punishment by considering the income of individual offenders, which resulted in just and equal sentencing. *8
It was only in 1953 that the system of suspended prison sentences was introduced. The enforcement of a prison sentence could be suspended for a probationary period ‘if there are reasons to believe that the sentence will serve as sufficient warning to the convicted person and that he will commit no further offences without having to serve the sentence’ (§56 of the CC). For the first time, a suspended prison sentence could be combined with supervision by the newly established Probation Service (via a probation order; see §56d of the CC). In the beginning, only prison sentences of up to 9 months could be suspended. In 1969, the scope was widened to up to one year, and even to two years in exceptional cases. *9 Court sentencing practice and the jurisprudence of the high courts and the Supreme Court (Bundesgerichtshof) have interpreted the exceptional nature of suspended prison sentences of between one and two years more and more as a regular option for the majority of cases: In 2015, 76% of these sentences were suspended (comparable to probation). *10 The law reform of 1986 (23rd StÄndG) adjusted the legal conditions to the criteria developed by the jurisprudence. In addition, the legislator expanded early release (parole) cautiously by allowing release after one had served half of the sentence for offenders serving a first prison sentence or on the basis of the offence or the offender’s personality in exceptional cases.
More far-reaching reform proposals, which were presented in the year 2000 by a commission of the Federal Ministry of Justice and which were in parts incorporated into several draft bills of a government led by the Social Democratic Party (SPD) in the early 2000s, *11 were dropped in 2006 with a reform law (2nd JustizmodernisierungsG) that paid no heed to any of the reform proposals of the earlier bills. Since then, the reform debate has been paralysed by coalition governments composed of the SPD and the Conservative Party (Christian Democrats, CDU). Because of a strong decline in the prison population since about 2005, the urgency of law reforms aimed at decreasing the prison population by expanding alternative sanctions is somewhat limited, although the problem of an increasing number of fine defaulters (see Subsection 4.1) is a big challenge for the criminal sanctions system.
3. Success stories
Diversion, or the discharge of proceedings for reason of opportunity (expediency), was considerably expanded in adult criminal procedure by the law reform of 1975. *12 The introduction of §153a of the Strafprozessordnung (Criminal Procedure Act, CPA) has not always been judged positively by penal law academics. *13 However, a pragmatic view on this cost- and time-saving procedural way of dealing with an increasing influx of offenders into the criminal justice system has been accepted in practice, particularly in complex economic and tax law cases. *14
Juvenile justice law and practice have paved the way insofar as 76% of cases were dismissed in 2015 (compared to 41% in 1981), normally without informal sanctions such as community service or other minor sanctions being imposed. *15 In adult criminal procedure, the proportion of dismissals increased to 60% in 2015 (from 34% in 1981), which means an increase by almost 100%. *16 Diversion is inevitable on account of the limited capacity of the justice system. However, it is not only a pragmatic solution but also an empirically validated strategy to avoid further delinquency. The recidivism rate is significantly lower for cases of diversion as compared to equivalent cases in which the court issues formal sanctions. *17
One consequence of such expansive diversion practices is that the remaining 40% of chargeable cases represent a high selection of offenders with more serious delinquent behaviour. *18
In fact, there is no need for further reform of the legal regulations pertaining to diversion. No doubt, the consistently visible disparities in regional diversion rates are annoying and of constitutional concern, *19 but evidently releases from the General Prosecutor’s office or from the Ministers of Justice as well as critiques from academics have not been helping to overcome these disparities. *20 Therefore, the legislator should take up the challenge to giveclear advice for decriminalising certain drug-related – in particular, cannabis-related – offences, shoplifting, and similar petty offences.
One of the most important and successful reforms to the German criminal sanctions system was the expansion of fines and the subsequent reduction in short prison sentences (sentences of up to 6 months). Since the beginning of keeping criminal court statistics (Strafverfolgungsstatistik), in 1882, fines have developed into the most important alternative to imprisonment. The share of fines among all court convictions rose from 22% in 1882 to 84% in 2015. *21 With the introduction of the day-fine system, fines have become more fairly balanced and proportionate to the income of the convicted offender. However, in practice, some unjustified sentencing still occurs, because most fines are issued through a written procedure and estimation of the income of the offender. This is one of the possible reasons for fine default in many cases. *22
In 2009, the legislator increased the maximum amount of one day-fine unit from 5,000 to 30,000 euros in response to the reality of very rich convicts (e.g., football players or managers of banking or other such enterprises). *23 Further reform needs cannot be identified. However, the execution of fines and the system for dealing with fine defaulters is in serious need of reform, particularly with regard to reducing imprisonment for failure to pay the fine. I return to this issue in Subsection 4.1).
3.3. Suspended sentences and supervision by the Probation Service
As mentioned above, the scope of suspended sentences and that of supervision by the Probation Service were expanded considerably in the 1970s and 1980s. The Probation Service has successfully learnt to work with more serious and recidivist offenders. This has been recognised by the courts and thereby resulted in an increase of the rate of suspended prison sentences involving probation from 30% in 1954 to 70% of all prison sentences in 2015. *24 In 2015, 77% of all prison sentences of up to two years were suspended. The legislative changes to ease the legal prerequisites for suspending prison sentences of between one and two years were a major success: the ratio of suspended prison sentences for terms of that length increased from 10% in 1975 to 74% in 2015. *25
Statistics for the practice of granting early release (see the Prison Statistics data) after half or two thirds of the sentence has been served are less clear, but, from individual studies, we can assume that the practice has become applied with more reluctance in recent years. *26
The ‘natural experiment’ to increase the rate of suspended sentences is one of the most successful reform projects for the German sanctions system. Although more and more serious and recidivist offenders have been put under the supervision of the Probation Service, the rate of reconviction or revocation of the suspension of sentence has declined. Astonishingly, the revocation rates for probationers with a history of prior convictions and probationary supervision reveals the greatest increase in successful completion of the probation term. *27
Therefore, it is understandable that more far-reaching reform proposals in Germany go beyond the two-year limit – in fact, demanding that the scope of suspended sentences be expanded to up to three years. There is, however, the danger that judges would impose longer sentences only to subsequently suspend them (up-tariffing). On the other hand, such a reform would enable the courts to suspend sentences that – for reason of the high minimum sentences required by law (e.g., for certain violent and sexual crimes) – currently can only be suspended by applying questionable constructions of declaring cases to be of ‘minor importance’ (minderschwerer Fall). The potential danger that more offenders with long sentences will enter the prison system in consequence of revocations seems to be very limited, as the revocation rates for the longer sentences in current practice (that is, for sentences of more than one year up to two years) are particularly low. *28
Another matter worthy of reform-related thought is the role that deterrence plays in the assessment of whether there is eligibility for a suspended sentence in a particular case. Restrictions on suspending a sentence that are based on interests of protecting public safety and order (“Verteidigung der Rechtsordnung”; see §56 (3) CC) should be abolished, as they are not justifiable by empirical arguments. *29
4. Problem areas
Talking about problem areas, one first has to clarify that, in Germany, we do not (yet) have real deficits in the sense of pitfalls or aberrations in a strict sense. The expansion of alternative sanctions has been successfully implemented in a remarkable way. However, there nonetheless appears to be some potential for reform to further reduce imprisonment. On account of the space restrictions of the present paper, some promising reform proposals must be left aside: the decriminalisation of certain minor crimes such as shoplifting *30 or using a public transport system without a ticket, on one hand, and the lowering or abolition of extended minimum sentences (for example, for serious robbery or drug crimes), on the other, where we find strong discrepancies and inconsistencies with regard to proportionate sentencing. *31 In addition, the decriminalisation of cannabis products seems to be a realistic target, in light of developments in the USA, the Netherlands, Portugal, Uruguay, etc. Such reform could serve to counteract penal hypertrophies and to reduce the use of penal law by reflecting its ultima ratio function in the regulation of societal conflicts related to norm conformity. *32
4.1. Community service / imprisonment for fine defaulters
The German Criminal Law does not provide for community service orders (CS) as originary, primary, or main sentences; these are only to be a substitute sanction for fine defaulters. The traditional argument was based on constitutional concerns about the prohibition of forced labour, which is allowed only in the context of the execution of prison sentences (Art. 12 (3) Basic Law, GG). From the standpoint of crime policy, it is likely that CS as a primary or main sanction, rather than as a substitute sanction, would replace not (short-term) prison sentences but fines and other community-linked sanctions instead. Therefore, the German legislator introduced CS only as a substitute sanction for fine defaulters in order to avoid imprisonment for not paying a fine. *33
The great success of the German fines system (see Subsection 3.2, above) is contested by the fact that Germany, in European comparison, has the highest proportion of prisoners serving a term of imprisonment for being fine defaulters. On 1 September 2015, 7.0% of the total prison population were fine defaulters, as opposed to 4.4% in Switzerland, 3.6% in the Netherlands, and under 2% in all remaining countries in Europe. *34 When one looks only at the sentenced adult prison population, the German statistics become even less favourable: the proportion was no less than 10.4% on 31 August 2017. *35
From taking this substantial (10%!) inappropriate occupation of prison capacity into consideration, the need for reforms becomes evident. All German federal states have introduced community service schemes to avert imprisonment for fine defaulters, but apparently they are not being implemented sufficiently (in terms of staff, organisational structure, administrative barriers, etc.). The proposal – as already made under the Social Democratic and Green Party coalition in the early 2000s (with the drafts of 2002–2004) – is to provide for community service as a primary substitute (or surrogate) sanction for a fine that cannot be paid. The present system only provides for community service as a substitute sanction after a prison term has been imposed on the person in default, a rather bureaucratic and complicated way of executing fines (see Art. 293 EGStGB and the decrees of the federal states on organising community service as a substitute sanction). This would imply a change in the organisational structure of executing fines, probably resulting in a great decline in use of substitute prison terms. *36 This change is a promising strategy that has been evaluated in some pilot projects, such as the Mecklenburg – Western Pomerania project called ‘Exit’ (Ausweg), as demonstrating that, in a lot of cases, it is foreseeable that fines will not be paid *37 but the offenders would be willing to work instead. However, the research has revealed also that supervision and support by the probation and aftercare services is recommendable, as the majority of fine defaulters represent a highly problematic population with deficits in many respects (related to socio-economic problems, long-term unemployment, poor housing, alcohol and drug problems, etc.). The draft bills of 2002–2004 were designed to enhance the standing of community service as a primary substitute to fines and referred to the positive findings of the Mecklenburg – Western Pomerania project:
This requires intensified efforts of the justice agencies and the co-operation of the third‑sector aftercare services, to offer fine defaulters the possibility of carrying out community service. The results of the Mecklenburg – Western Pomerania project “Ausweg” revealed that a considerable quantity of substitute prison terms can be avoided through optimising the organisational structure of rendering work facilities suitable for community service – in case involving the support and care of the aftercare services, while the fine defaulter is working.
Further, the research reveals also
that even particularly difficult offenders who have accumulated personal problems are able to successfully complete community service if the work facilities are carefully selected according to the capabilities of the clients and if intensive mentoring is provided. The reduction of inappropriate use of prison capacities and saving of social costs are positive results in this regard. *38
The introduction of community service as a primary substitute for fines should lead to shortening of the execution procedure. A well-grounded reform proposal in this context is that one day-fine unit should be equal to 2–3 hours of community work (instead of the 6 currently witnessed in the practice of the German federal states). *39
If the substitute sanction of community service fails because of offender non-compliance, the further substitute prison term for fine defaulters should also be considered for reform. In Germany, at present, one day-fine unit corresponds to one day in prison. In future, one day in prison should correspond to at least two day-fine units, as is the case in Austria, Liechtenstein, Poland, Slovenia, and Spain. In Finland and Estonia – as mentioned above – one day in prison even counts for three day-fine units. *40 The Austrian model would immediately reduce the population of fine defaulters in prison (4,700 on 31 August 2017) by half, the Finnish one by two thirds. A conversion rate of 2 or 3 to 1 is in line with justice considerations ‘that a day in prison is a much heavier burden than the loss of a day’s net income’. *41
In accordance with the draft bill of 2004, community service should – beyond substituting for fines – serve as a substitute for prison sentences of up to 6 months. *42
4.2. Warning with deferment of sentence
The warning with a deferment of sentence (WDS, Verwarnung mit Strafvorbehalt), introduced in 1975 (see §59 CC), has the function of a suspended fine with a maximum of 180 day-fine units. Irrespective of some cosmetic reform to increase its applicability for judges (see the last reform law of 2006, 2nd JustizmodernisierungsG), the sanction still holds a shadow existence, accounting for only 1% of all convictions in 2015 (‘insignificant practice’). *43 The WDS was introduced as a sentence in exceptional cases (‘special circumstances of the offender’s personality or the delinquent act’) and – in spite of legislative efforts to enhance its importance (see Section 2) – has never gained statistical significance. The reason might be that 1975 also saw the introduction of discharging cases in combination with minor informal sanctions (§153a of the CPA), which has ‘skimmed the market’ for warnings in line with §59 of the CC.
Many academics, however, saw a chance to expand the use of the warnings in the early 1990s by approximating its content to a kind of probation including the possibility of supervision by the Probation Service. *44 The decisive motive for this proposal was that in the general criminal code (apart from in the Juvenile Justice Act; see §10 JGG) the support of the Probation Service is provided only to offenders sentenced to a suspended prison term and that a need for social work support was often evident also in cases that did not reach the threshold for a prison sentence. *45 One could replace many suspended prison sentences of up to one year with such a probation sentence, which in the event of a recall would result only in a maximum of 60 day-fine units or 240 hours of community service. The proposal would also result in relief of some work of the Probation Service as, instead of two to five years of supervision as in the present system of suspended sentences, the new probation sentence would be combined with a maximum of one year’s supervision. Regrettably, these reform proposals have not reached the level of a governmental draft bill yet, but they remain on the agenda at least in the academic world.
4.3. Early release
A significant reform deficit can be observed in the regulations on early release from prison. Since the cautious expansion in 1986 (23rd StÄndG), mentioned above, no further action has been considered by the legislator. International comparative research and empirical evidence reveal the positive impact early release can have on the desistance process of offenders. Therefore, even release of offenders after they have served half of their sentence seems to be a realistic option. *46 No other country providing early release after half the sentence restricts this to first-time offenders with sentences of two years or less, as is the case in Germany. *47 Another desideratum pertains to the prognostic requirements in the so-called midrange cases, in which predictions are unreliable or neutral. This refers to the fact that the majority of offenders, at the stage when predictions are made about their future behaviour, fall into a range where the likelihood of recidivism is around 50%, precisely what the probability would be if it were simply left to chance. *48 The answer to the question of whether release can be justified, therefore, cannot be yielded by empirical arguments but must be based on normative regulations. Should uncertain prognoses be handled conservatively at the expense of the offender, or should the principle be in dubio pro libertate? The present German solution demands a positive prognosis – i.e., that cases of uncertainty be decided against the favour of the offender. The jurisprudence of the Supreme Court (BGH) has lowered this requirement by granting release if it can be ‘justified’: there must be realistic hopes of a crime-free life after release, and the risk of minor relapses into crime may not lead to a negative decision on early release. However, in light of comparative research, this does not seem to be enough. In accordance with a proposal made in 1966 (the so-called Alternative Draft Bill, AE-StGB), early release should be made the rule and denial thereof the exception, the latter to be based on facts that demonstrate a concrete risk of serious crimes after such a release. *49 Accordingly, in cases of offenders serving a sentence for serious violent or sexual crimes, a special examination of the risks of committing similar serious offences should take place. In all other cases, the rule of an early release without individual-specific diagnostics would apply. Such rather automatic early release in the large majority of cases may be justified on the basis of positive experiences in other European countries – for example, in Belgium, in Finland (after the individual has already served half of the sentence), or in Sweden. *50 Possible high-risk cases can be identified best if the prison administration is ready to regularly and widely use prison leaves (day leaves or long-term leaves of absence of several days), transfer to open or less secure prison facilities, and other relaxations as a kind of ‘endurance test’, which makes predictions more reliable. The experiences with such prison relaxations can also contribute to finding the appropriate interventions and directives for the time after release. Psychiatric experts deal with that problem under the term ‘social reception room’ (‘sozialer Empfangsraum’), where this space has to be designed in a favourable way in order to further desistance processes.
A remarkable reform associated with prognostic criteria was passed in Austria: §46 (1) of the Austrian Penal Code provides for a comparative prognosis. The judge shall grant early release if the risk of recidivism after early release is not less than if the offender were to serve out the full sentence. In other words, it must be proved that serving the sentence in full would diminish the risk of recidivism. This regulation, when taken seriously, normally justifies an early release, as, in general, prisoners who are released early show a lower propensity to recidivate than prisoners serving their full sentence. *51 This can be explained by the better transition management, supervision, and control parolees receive.
A reform of early release regulations in Germany (§57 CC) should take up the idea of reversing the places of rule and exception by making early release the rule and fully serving the sentence the exception. This reflects the impossibility of reliable prognoses in the so-called midrange cases and follows the principle in dubio pro libertate. One should be granted early release after having served half (for first-time incarcerated offenders) or two thirds of the sentence (§57 (1) and (2) CC) ‘unless, because of concrete facts, a high risk of further serious crimes becomes evident’. *52
5. (Possible) aberrations, meanders, or pitfalls: Electronic monitoring in European comparison
Electronic monitoring (EM) is practised in Europe in two distinct forms. The first is the form of radio-frequency-based devices (electronically monitored house arrest), and the more recent is use of the GPS surveillance technique, which allows one to identify where the surveilled person is at any moment of time. The latter technique allows zones to be defined that the offender is not allowed to enter (for example, the area of a kindergarten in the case of paedophile offenders). In Germany, in contrast against most of the other European countries, the use of EM has been met with strong reservations, or even criticism. Only the federal state of Hesse developed a pilot project, in the year 2000, and even that received only marginal numbers of cases (mainly in the form of radio-frequency-controlled house arrests). *53 The GPS-based form of EM was introduced nationwide in 2011 in the context of supervision of conduct orders (Führungsaufsicht), a measure of supervision after the release of offenders from psychiatric hospitals, after release from the measure of preventive detention, or upon the person having served the full prison sentence (§ 68b (1), sent. 1, No. 12 CC). It only applies in cases where the offender is seen as a high risk for future serious violent or sexual crimes and if other forms of supervision do not seem to be sufficient. *54 EM in Germany is therefore an exceptional form of supervision for high-risk (‘dangerous’) offenders and covers around 100 cases at the moment, which number is quantitatively negligible relative to the roughly 35,000 offenders under a supervision of conduct order. This very reluctant use of EM in Germany reflects the intrusive nature of EM and the constitutional principle of proportionality as it is interpreted in Germany (see also below).
In other European countries, an amazingly dynamic rise in EM has taken place, particularly in England and Wales, Scotland, Belgium, and the Netherlands. This may be explained by commercial interests that are evident from looking at the activities of private companies selling the technique and technology, insofar as a new quality in the penal law has emerged (similar to the rise of the US prison industry from privatising imprisonment there), which endangers the role of the state. The driving forces in crime policy– apart from a fascination with new techniques *55 – were problems of prison overcrowding, the crisis of the traditional probation services (in England and Wales), and a naïve belief in technical instead of human‑interaction-based solutions for preventing further crimes. This resulted in countries such as Belgium, England/Wales, or Scotland introducing EM as a stand-alone measure of control without the classic support the probation service used to offer. The target groups are low-risk offenders, and the period of supervision in most cases does not exceed 6 months. The comparative European study of Dünkel, Thiele, and Treig came to the overall conclusions:
– that the introduction of EM in Europe had no significant impact on prison population rates and to solve the problem of prison overcrowding (see, for example, England/Wales, France, Italy, Poland, and at least until recently Belgium; a possible exception – however, with limited impact – might be Estonia); *56
– that in most cases EM represents an additional and intensified form of social control (net-widening);
– that in some countries it has contributed to reducing the importance of the traditional social support schemes for offenders (as usually provided by the probation and aftercare services) by introducing EM as a stand-alone measure (for example, in England/Wales, Belgium, or Scotland […]); and
– that, on the other hand, in some countries EM was integrated into the rehabilitative system of community sanctions under the leading role of the probation services and/or the prison administration – for example, in Austria, the Netherlands, Sweden, Switzerland, and increasingly Scotland again, as well as in a few cases in Germany. *57
The use of EM in cases of pre-trial detention as practised in several countries (which includes the pilot project in Hesse) has to face serious criticism. If there is a risk of absconding and not standing trial (which is the reason for a warrant in 90% of cases in Germany *58 ), EM cannot prevent an escape. If there is only a low risk of not standing trial, then there is no justification for a warrant to pre-trial detention. Therefore, the number of appropriate cases must per definitionem tend toward zero. In addition, research has revealed that EM does not fit the typical clients of pre-trial detention, as they may not have stable living conditions and a telephone connection.
The legal basis for EM in Germany – apart from the regulation of §68b of the CC for high-risk offenders – is not clear, and the legal constructions are possibly in violation of constitutional law, although the Frankfurt on Main district court has recognised the possible application of probation law. *59 However, in my opinion, there must be an explicit legal authorisation for EM also in the context of regular probation (§56c of the CC). *60 In any case, the principle of proportionality requires a restrictive practice for EM and a double check of the principle of proportionality: first, EM must be proved legitimate as a sanction that really replaces imprisonment rather than just other community sanctions; second – and this is often overlooked – it must be legitimised by other, less intrusive community sanctions, such as traditional supervision by the Probation Service (§56d of the CC), having been excluded as being inappropriate. *61 EM therefore can be justified as an intermediate sanction only in the rare cases where supervision by the Probation Service is not sufficient and imprisonment can be avoided only through a combination of probation with intensified control via electronic devices. No wonder, therefore, that in Hesse only about 100 out of the 16,000 probationers in 2011 were under EM.
The way in which some European countries have implemented EM to replace short-term imprisonment or to employ EM as an additional form of controlling prisoners on prison leave etc. must – with only a few exceptions (e.g., Finland, Austria, and in parts in the Netherlands) – be seen as a meander or failure. *62 Accordingly, the law introducing EM for fine defaulters serving their prison term in the community and for prisoners on prison leave in Baden-Württemberg was repealed in 2013, as no appropriate cases involving a need for EM could be identified. *63
Altogether, German crime policy was well advised to restrict EM to very serious cases of high-risk offenders and to rely for the rest on the traditional forms of probationary supervision, which, without going into details, one can characterise as corresponding to the evidence from empirical research on offender treatment and from desistance research – i.e., the evidence on how and under which conditions offenders abandon their criminal lifestyle. *64
In general, the criminal sanctions system in Germany has proved to be of value. Fines and suspended prison sentences represent remarkable success stories of German penal law and have contributed to imprisonment really becoming a last resort. Germany with its prison population rate of 76 per 100,000 inhabitants belongs to the low-level imprisonment countries and has joined the ‘Scandinavian exceptionalism’. Deficiencies can be seen in some boundary areas of the execution of fines, with too many prison terms as substitute sanctions applied to fine defaulters. Furthermore, suspended sentences and early release deserve wider and – in the case of early release – earlier application. Further reducing prison population rates depends on the sentencing practice and inmate structure of a country. Whereas in Germany short-term imprisonment prevails (on 1 September 2014, 45% were serving a sentence of only up to one year; compare to Estonia’s 11%), in other countries, such as Estonia, long-term prison sentences, of 5 years or more, are the problem (Estonia: 2014: 40%; Germany: 12%). In Germany, therefore, promising strategies to reduce the prison population entail expanding alternatives to prison sentences; in Estonia, it would be preferable to focus on reducing the length of the prison sentences imposed or the stay in prison by expanding early release.
Moderate penal law, which further reduces the imposition of prison sentences, is to be seen not as a beneficence for offenders, who should – according to populist thinking – be treated with harsh punishment, but as a rational evidence-based strategy, which at the same time serves to prevent crime and protect (future) victims. Especially in times of populist political currents in society and crime policy, one has to warn against a hypertrophy of penal law. Moreover, I think that one of the things to Jaan Sootak’s credit is having done so in his writings in favour of moderate penal law and sentencing practice. In this context, it is right to confront possible negative developments, such as electronic monitoring, and other manifestations of a ‘New Punitiveness’ (more and longer prison sentences), as they can be observed in many European countries (see Section 5). *65 Estonia – thanks to Jaan Sootak’s foresightfulness and knowledge of foreign penal systems and developments – has made great progress in overcoming the old Soviet approach to penal law and has successfully integrated into the EU family of human-rights-based penal law. We thank him for his efforts and wish him lots of energy for many more years to advocate for humane penal law.