Max Planck Institute for Foreign and International Criminal Law

It is well accepted in the field of criminology that while criminal sanctions are intended to only impact upon the offender as an individual, the offender’s relatives remain undeniably affected. The individual meting out of criminal sanctions is sometimes even described as a legal fiction, because a negative impact on relatives cannot be avoided, even though it is not the explicit aim of modern justice. After all, humans are not economically, socially or emotionally independent beings, but are rather embedded within the social environment. Therefore, individual punishment will almost invariably affect the social environment of the convicted offender, and particularly the members of this environment with whom the offender is most closely related.

Two conflicting conditions underscore the effect that the punishment of an offender has on the offender’s relatives. On the one hand, the delinquent, through his/her own actions, places a burden on their relatives. On the other hand, as the behaviour of the delinquent is criminally condemned and sanctioned by the state this in turn places a further burden on the relatives. This burden placed on relatives by the state can indeed be practically understood as the (factual) co-punishment of third parties.

As previously mentioned the term “third parties” includes all those members of the offender’s social network who are affected socially, psychologically and/or economically by the imprisonment of the offender. At present no exact data exists concerning just how many relatives are affected in this manner. However, official German prison statistics do show that throughout the course of 2004 135,002 people were imprisoned in the Federal Republic of Germany (Statistisches Bundesamt, Bestand der Gefangenen und Verwahrten in den deutschen Justizvollzugsanstalten, Stand 11. 2. 2005, S. 5). If one assumes that roughly one fifth of those imprisoned are married, and in addition takes into account defacto partners, (dependent) children and other close acquaintances living within the community, then a substantial number of individuals are concerned.

In this regard, it is nevertheless important to note that relatives are not only “victims”, but that they also play an important role within the rehabilitative process of the offender.

Thus, the implementation of modern criminal sanctions and the carrying out of prison terms has been influenced by the aim of causing minimal disruption to the relationship between those in correctional facilities and their relatives. Modern criminal sanctions and correctional conditions have intended to confirm this relationship especially during the course of an offender’s imprisonment. As such, it was the aim of the StVollzG to enable offenders confined to correctional institutions the ability to still contribute to the livelihood of their relatives (for instance, through the effective remuneration of work carried out inside correctional facilities). Furthermore, in addition to other “relative-friendly” initiatives it was also intended that the prisoners would receive access to state funded health insurance and pension schemes. However, such reform movements have failed primarily due to financial reasons. Thus, at this point in time the StVollzG “relative-friendly” measures are confined almost exclusively to the furtherance of personal contact for prisoners and their relatives, for example, through the introduction of improved visitation rights.

Whilst criminological research during the 1960s and 1970s primarily focused on the rights of offenders, during more recent decades conservative political and scientific research has shifted the centre of attention away from the offender to the victim. Thus the research concerning offenders and their surrounding social environment has faded somewhat into the criminological backwater. It is was only in recent debates concerning the electronic monitoring (or “tagging”) of offenders that research concerning relatives regained some importance. At an international level, questions relating to third parties are also once again beginning to emerge, particularly in countries where the correctional system is characterized by the use of exceedingly lengthy prison terms and a corresponding expansion of the prisoner population (this is above all evident in the USA).

This empirical project aims to examine to what extent the relationship between convicted persons and their relatives, especially children, are considered within the judicial decision making process in relation to the imprisonment of convicted offenders. This question essentially concerns whether a convicted offender is able to have his or her sentence suspended or not. A secondary aim of the project is to analyse to what extent the correctional institutions of Baden-Württemberg support and facilitate contact between those imprisoned and their relatives in an attempt to mitigate the effect of imprisonment on third parties.

The question regarding the possible extent to which relatives of offenders played a role in the use of suspended sentences in accordance with § 56 StGB was examined through a case file analysis. To this end, 300 criminal procedure files were selected from the Office of the Public Prosecutor in Freiburg, Stuttgart and Waldshut-Tiengen. Of these 300 criminal procedure files, 150 concerned cases in which a suspended sentence was issued. The control group consisted of the remaining 150 criminal procedure files, which all involved cases where the offender was imprisoned in absolute terms.

In a similar case file analysis the project examined to what extent the factor of “relatives” and in particular the factor of “children” played a role in determining parole and early release in accordance with § 57 StGB. It was also examined as to whether these factors had an impact in accordance with StVollzG, for example, a relaxing of prison conditions and increased holidays. To this end, 150 prisoner procedural files were examined from prisoners who received parole during 2001 in the districts of Swabian Gmünd, Heilbronn and Bruchsal. These files were randomly selected.

A supplementary questionnaire was also sent to all adult correctional facilities in Baden-Württemberg. This questionnaire aimed to evaluate the different possibilities prisoners had in terms of maintaining contact with those in the outside world in accordance with §§ 23-36 StVollzG and how such contact was arranged.

The collection and analysis of the data is, to a large extent, complete. Thus far, the results in question point to the fact that third parties play a very minor role in deciding whether or not an offender should receive a suspended sentence in accordance with § 56 StGB. In this regard the most important factor is whether the offender has a prior criminal record. A further interesting tendency is to be observed during the conditional release of the offender on parole in accordance with § 57 StGB. Here the personal and family situation of the prisoner does play a role in connection with questions concerning the situation of the prisoner upon release – the so-called “Sozialer Empfangsraum” [“(lack of) social support after prison release”].