Joshua Kleinfeld

The Concept of Evil in American and German Criminal Punishment

The gap in harshness between American and German criminal punishment represents a moral disagreement between the two societies: American criminal punishment expresses a belief in the concept of human evil, while German criminal punishment denies that belief. This paper, after giving the concept of evil some philosophical definition, develops that thesis with six lines of argument. First, contrasting American and German responses to major crime, the paper argues that American criminal law routinely banishes its worst criminal offenders, while German criminal law almost never does. Second, as to minor crime, American law treats misdemeanors as portents of worse things to come, while German law treats them as errors. Third, in the context of recidivism, America punishes the person, Germany the act. Fourth, with regard to community reintegration, American law approaches ex-cons with a concept this paper terms “residual criminality,” while German law adopts norms of full forgiveness. Fifth, as to capital punishment, America treats the right to life as alienable for wrongdoing; Germany treats that right as inalienable. And sixth – turning here from interpreting criminal doctrine and practice to analyzing the historical record – the paper shows that various players in the American criminal system have given voice to the belief in criminal evil, while major players in the German system have expressly denied that belief. The paper concludes by asking which system is more just, arguing that German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike.