Max Planck Institute for Foreign and International Criminal Law

Criminal offenders who are very likely to engage in serious criminal activity after serving their punishments are considered a security risk that must be countered by means of (additional) liberty-infringing measures. The public’s mantra with respect to such offenders – especially if they are sex offenders – is “lock them up forever”; the legal situation in Germany is considered unsatisfactory, by some, despite several reforms during the past 10 years. On the basis of some 15 (mostly European) legal systems, this research project presents a comparative overview of what liberty-infringing legal consequences can be imposed on what group of offenders under what circumstances and legal conditions in order to serve society’s interest in protection from criminal recidivists.

This traditional comparative legal study consists of country reports, prepared according to a common outline, and a functional comparative analysis. The functional approach is useful in comparing various security concepts. In some countries, for example, statutory punishment ranges and sentencing by the trial judge already reflect the offender’s (typical or individual) degree of dangerousness. This is true even where life imprisonment is not a possibility, if very long prison sentences can be imposed and/or in the case of multiple offenses – sentenced cumulatively – if the length of the sentence imposed is not limited by the biological life expectancy of the convicted offender. Likewise, the repeated commission of serious crimes can be countered by means of statutory penalty enhancements, be it because these enhancements have a deterrent effect on some potential offenders or be it because repeat offenders who are not deterred are sentenced to longer prison terms than are first offenders. In the meting out punishment, it is possible that a distinction is already made between components of the sentence that reflect culpability and those that reflect dangerousness. Finally, the project will analyze the extent to which unfavorable criminal prognoses are considered in decisions about conditional early release from custody.

For those legal systems that provide special, liberty-infringing security measures in addition to the actual punishment of criminally responsible offenders, we will compare the substantive requirements of these measures as well as their basic procedural parameters. Besides possible prior and predicate offenses and the criminal sanctions imposed for these offenses, we will pay special attention to the criterion of the dangerousness of the offender, i.e., the likelihood that he or she will reoffend. In this context, we will also analyze possible differences between the prerequisites for imposing security measures on sex offenders and those for imposing security measures on other delinquents. Another personal offender characteristic that we will focus on is a possible minimum-age requirement at the time of crime commission or at the time of sentencing. As far as procedure is concerned, in addition to the point in time at which a decision is made regarding the imposition of a liberty-infringing security measure (already at the time of sentencing or not until after the sentence has been served), the techniques employed to forecast the degree of dangerousness are also of great relevance. Of no less significance are the statutory procedures according to which the need to continue or the possibility of terminating a security measure are evaluated. As a considerable period of time may pass between the commission of a predicate offense, sentencing, and the end of the serving of the sentence and/or the liberty-infringing security measure, we will also study the extent to which any changes in legislation that have taken place during this time should be considered in subsequent judgments on the imposition, continuation, or termination of a liberty-infringing security measure.