German Justice Differs for a Reason

Lexington, VA Sunday, February 14, 2010

This commentary appeared originally in the Roanoke Times on February 14, 2010.

Alongside all the suffering Jens Soering inflicted on the Haysom family, he also seems destined to wreck American-European relations.

Soering, a German national, was convicted and given consecutive life sentences in Virginia in 1990 for murdering his girlfriend's parents, Derek and Nancy Haysom, while he was a student at the University of Virginia. Prosecutors would have sought the death penalty, but Soering slipped away to England and waged a three-year legal battle to evade Virginia's extradition request.

The last stop in his legal gambit was the European Court of Human Rights, an international tribunal based in Strasbourg, France. In one of its most well-known and far-reaching decisions, the court held that England could not extradite Soering to Virginia so long as he faced capital charges. Soering's extradition was secured only after Virginia prosecutors gave assurances that they would not seek the death penalty, which is banned by a protocol to European Convention for Human Rights.

In its ruling, the European Court concluded that the anguish Soering would suffer during the typical, decade-long delay between a capital conviction and execution in the United States would constitute a violation of the Human Rights Convention's prohibition of torture. The court called this the "death row phenomenon." It was an obvious dig at American enthusiasm for the death penalty, an issue that has been a point of heated misunderstanding across the Atlantic for decades, prompting one commentator to conclude that "Americans are from Mars; Europeans are from Venus."

Now Soering is again stirring the trans-Atlantic waters. Virginia Gov. Bob McDonnell has revoked his predecessor's agreement to have Soering transferred to Germany for the completion of his life sentences. Former Gov. Tim Kaine's transfer deal came with German reassurances that Soering would not be considered for early release for at least two years.

How could German authorities consider suspending Soering's consecutive life sentences after only two decades in Virginia and German prisons? Surely the Venusians cannot object to the inherent justice of a real life sentence as punishment for a heart-wrenching crime like Soering's.

Yes, they can.

Like the death penalty, life sentences are unconstitutional in Germany, a fact that has alarmed Virginia policymakers and fueled the entrenched stereotype that Europeans are generally too soft on crime and security. But this particular rule, like all constitutional law and policy, must be understood in its historical and social context.

Like so much of Germany's post-war constitutional order, the prohibition on life sentences is part of Germany's solemn reaction to the atrocities committed during the Nazi-era. That jurisprudence has made "human dignity," protected as an inviolable right by the German constitution's first article, the highest norm and value in their constitutional order.

In striking down life sentences, the German Constitutional Court explained that respect for human dignity prevents the state from treating a person, even a convicted criminal, as a mere "tool of the state ... [as] an object of crime prevention" without giving due regard to the convict's social worth and inherent, continuing ties to society.

With a barely-veiled reference to the Nazi legacy, the court said, "We cannot separate our recognition of the duty to respect human dignity from its historical development." Some possibility for the convict's re-emergence from prison as a reformed member of the community must remain.

Germany's commitment to these values, rooted in the lessons of its past, is very real, even if it is not always easy. From time to time notorious criminals are given early release from prison based on authorities' assessment of their remorsefulness and reform. Despite the public outcry raised by some of these cases, when the prison doors are opened for some German convicts well ahead of the completion of their full sentences, most Germans understand why and what it says about their past and present values.

Whatever Soering's fate, the latest commotion over his case at least provides a chance to better understand the distinct history and values that inform what so often has been a confounding part of American-European relations. In that sense, we might conclude that "Americans are from America; Germans are from Germany."

Russell Miller is an associate professor of law at the Washington and Lee University School of Law and co-editor-in-chief of the German Law Journal.

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