Sanctions: German Law and Theory

Abstract

One of the most important consequences of the recent criminal law reform in the Federal Republic of Germany is the thorough revision of the law of sanctions. While efforts to reform the German Penal Code can be traced back to the beginning of this century,1 the first steps to develop a new system of sanctions based upon findings of criminological research and in harmony with modern ideas of criminal policy were not taken before the mid-1960's. Even the official 1962 Draft prepared during the 50's still followed traditional patterns.2 Its main purpose was to restate and to refine the existing system as it had been developed by the courts and legal writers. Punishment was considered retribution for the offender's guilt. Accordingly the Draft suggested three types of confinement that should correspond to the seriousness of the offense. Imprisonment rather than a fine was also provided for cases involving minor offenses. Suspension of sentences for probation was allowed only under narrow conditions. The tide turned in 1966 when a group of 14 criminal law teachers published the Alternative Draft.3 Its outstanding feature was a progressive and humane system of sanctions, guided above all by the idea of rehabilitation. It retained only one sanction involving loss of freedom. The minimum term of imprisonment was set at six months, since a shorter term would not serve rehabilitative purposes. Moreover the Draft suggested the establishment of institutions of social