NCJ Number
49466
Journal
Bewaehrungshilfe Volume: 25 Issue: 2 Dated: (1978) Pages: 99-107
Date Published
1978
Length
9 pages
Annotation
THE DECLARATION BY THE GERMAN FEDERAL REPUBLIC'S SUPREME COURT THAT LIFE SENTENCES ARE CONSTITUTIONAL AND THE SIMULTANEOUS DEMAND OF THE COURT FOR MORE SUITABLE LEGISLATION ON PARDONS ARE DISCUSSED.
Abstract
AN EMPIRICAL SURVEY OF ALL THE WEST GERMAN STATES INDICATES THAT THEY EXTENSIVELY USE THEIR RIGHT OF PARDON, THAT 'LIFE SENTENCES' RARELY LAST THAT LONG, AND MOST PARDONS OCCUR BETWEEN THE 15TH AND THE 25TH YEAR OF IMPRISONMENT. ALTHOUGH THE FORMAL PROCEDURES FOR PARDON VARY FROM STATE TO STATE, THE CRITERIA FOR PARDONS (E.G., AGE, TIME SERVED, CRIME, HEALTH) ARE OSTENSIBLY SIMILAR, EVEN IF EACH CASE IN CONSIDERED SEPARATELY. IT IS ARGUED THAT THE PARDON PROCEDURES SHOULD BE DETERMINED BY LAW BECAUSE THE PRESENT SYSTEM ENCOURAGES DECISIONS BASED ON CHANCE RATHER THAN ON THE FLEXIBILITY CLAIMED, BECAUSE LONG-TERM IMPRISONMENT MAY NEGATIVELY AFFECT THE INMATE'S CHARACTER, AND BECAUSE UNDER PRESENT LAWS THOSE SERVING LIFE SENTENCES CAN REQUEST TEMPORARY RELEASE BUT NOT PARDON. FURTHERMORE, THE SUPREME COURT CLEARLY CALLS FOR LEGISLATION TO ASSURE BOTH CLARITY OF THE LAW AND ABSOLUTE JUSTICE. LAWMAKERS ARE FACED WITH THREE DIFFICULT QUESTIONS: (1) WHEN, AFTER 15 YEARS, SHOULD RELEASE TAKE PLACE? (2) WHICH CRITERIA ARE DECISIVE FOR RELEASE (E.G., SHOULD THE CRIME COMMITTED BE A FACTOR)? (3) PRACTICALLY SPEAKING, SHOULD THE LIFE SENTENCE BE COMMUTED TO A DEFINED PERIOD TO BE SERVED ON PROBATION? THE SUPREME COURT SHOULD NOT HAVE ENCOURAGED LEGISLATORS TO TAKE THEIR TIME TO GAIN PERTINENT EXPERIENCE BEFORE PASSING LEGISLATION, BECAUSE THIS WEAKENS THE AUTHORITY OF LAW, WHICH MAINTAINS AN UNREAL THREAT OF PUNISHMENT NOT PURSUED IN LEGAL PRACTICE. TWENTY-TWO NOTES ARE FURNISHED. --IN GERMAN (KMD)