Capital Punishment in Germany - Capital Punishment in The German Reich

Capital Punishment in The German Reich

If the failed German constitution drafted by the Frankfurt Parliament in 1849 had come into force, capital punishment would have been abolished in most cases, since Art. III § 139 of the constitution stated: "Die Todesstrafe, ausgenommen wo das Kriegsrecht sie vorschreibt, oder das Seerecht im Fall von Meutereien sie zuläßt, abgeschafft" ("Capital punishment, except when it is prescribed by martial law or permitted by the law of the seas in cases of mutiny, abolished"). The German Empire (1871-1918) quite liberally inflicted the death penalty for some forms of 1. high treason and for 2. murder which was then defined as killing with premeditation; only murder and attempted murder of one's souvereign was capital treason. Under military law, in case of a war only, some other particularly listed forms of 3. treason, some cases of 4. wrongful surrender, 5. desertion in the field in case of relapse, if the previous desertion also had taken place in the field, 6. cowardice if it led to a flight with enticing one's comrades to flight, 7. explicit disobeying an order by word or deed in the face of the enemy, 8. sedition in the face of the enemy, or in the field (only) if done as a ringleader or instigator, or with violence as a leading man. During the German empire, the legal methods were guillotine for civilian crimes and firing squad for military crimes. The Weimar Republic retained death penalty for murder, and several murderers were guillotined.

As to the National Socialists, the leading Nazi jurist Hans Frank boasted at the 1934 Reichsparteitag of “reckless implementation of the death penalty” as a special acquisition of the Nazi regime. Under Hitler nearly 40,000 death sentences were handed down, mainly by the Volksgerichtshof and also by the Reich Military Tribunal. Executions were carried out most often by beheading using the guillotine although from 1942 on hanging by using the short-drop method became also common. A firing squad was reserved for military offenders.

Additional forms declared treason could (in some cases, especially for soldiers, mandatorily) be prosecuted with death, as could grave arson, aiding and abetting treason, betraying a secret (mandatorily), procuring a secret for the sake of betraying it, insidious publishing or rhetoric, failure to denounce a capital crime, destroying means for military use, sabotage (mandatorily for soldiers), kidnapping (mandatorily), compassing or imagining the death of a NS or state official for political reasons or the reason of their service, setting a car trap for the means of robbery (mandatorily), espionage (mandatorily), partisanry (mandatorily), all cases of desertion, subversion of military strength (mandatorily except for minor cases), looting (mandatorily even in cases of smallest amounts), arson which damages the power of defense of the people, crime during danger resulting from enemy aviation (in grave cases), taking advantage of the state of war whilst committing a crime ("if the sound feeling of the people so requires"), publishing foreign radio broadcasts, etc. The definition of murder was changed and, in practice, extended to the rather vague definition still in force, but now only with life imprisonment. This list is by no means exhaustive, even where laws and decrees are concerned. As an addition to crimes declared capital by law or decree, a "dangerous habitual criminal" or one convicted of rape could be executed "if the protection of the people or the need for just atonement so demands", courts (or whatever was in place of a court) sometimes were officially granted the right to inflict the death penalty even where not provided by law, and sometimes did so by their own discretion. Many of the crimes covered a wide and unpredictable range of actions, such as treason, "sabotage" (Kriegsverrat, which was any action pandering the enemy) and subversion of the military strength, which could be interpreted as to cover any critical remark, and even though even it did clearly not cover it was applied to execute any conscientous objector. To quote Hitler, "after ten years of hard prison, a man is lost to the people's community anyway. Thus what to do with such a guy is either put him into a concentration camp, or kill him. In latest times the latter is more important, for the sake of deterrence."

According to Manfred Messerschmidt, "from 1907 to 1932," i. e. including World War I, "Germany had issued 1547 death warrants, of which 393 were executed. Wehrmacht courts on the other hand issued, conservatively estimated, 25000 death warrants, of which 18000 to 20000 were executed." According to official statistics, other courts had altogether issued 16560 death warrants (whereof 664 before the war), of which about 12000 were executed. In fighting partisans, 345000 are reported to have been killed, of which less than 10% may have been partisans. This, however, should not obscure the fact that not only the National Socialist legal system was tyrannical (especially also with the protective custody, to be inflicted at the Gestapo's arbitration and to be fulfilled in a concentration camp), but this law also was broken to the detriment of those persecuted or opposing. A concentration camp commander could as early as in 1933 inflict the "death penalty" for disobedience, i. e. order to murder a disobedient, without any legal ground whatsoever besides the will of Heinrich Himmler, but also without meeting opposition. Himmler himself offered an honorable way out for members of the SS who were convicted of capital crimes-they were locked in a room with a revolver and one live round, then given several hours to use it. After their deaths any surviving family were given pensions. Bl. Bishop Clemens of Münster correctly saw himself legally obliged to denounce to the criminal police those responsible for the Action T4, i. e. the killing of the handicapped, for murder (then: killing with premeditation); likewise, no law even of the Nazis allowed extermination through work, and genocidal mass murder, as in the case of the Holocaust.

The ban on the death penalty, as imposed by the German constitution in 1949, however was a reaction not to its extensive use under the Third Reich, but to the execution of convicted Nazi war criminals by the International War Crimes Tribunal.