Punitivism Is Not the Desired Panacea Or: Why Good Social Policy Is Also the Best “Corona Policy”

[Ursula Gernbeck is a public prosecutor at the Munich I Public Prosecutor’s Office and previously worked in the Bavarian State Ministry of Justice; she gives her personal opinion here; Katrin Höffler and Kai Ambos are professors of law at Georg-August-Universität Göttingen. The authors thank Dr. Lucia Sommerer, LLM (Yale) for preparing this English version.]

Rarely have protests in the recent past in Germany attracted as much attention as the recent Corona demonstrations in Berlin (starting with the one of 1st of August, 2020). At the center of the controversy lies not just the demonstrators’ demand to immediately lift still in place restrictions on civil liberties, but above all the “how” of the demonstration – the participants were either unwilling or unable to comply with the hygiene regulations under which the demonstration had been approved. The demonstrations were thus dissolved by the police.

So far, so normal. People take to the streets in exercise of their constitutionally guaranteed rights, and if – while doing so – they do not comply with the laws in force in this country, they have to bear the consequences (e.g. dissolution, removal from the premises, fines). What was not normal about the first demonstration were the reactions by politicians. Numerous leading German politicians accused the demonstrators of ruthlessness, and blamed them for the possible emergence of a „second wave“ of COVID-19 . Jan Redmann, parliamentary party leader of the Christian Democratic Union in the federal state of Brandenburg, called the protest “dangerous nonsense” and Saskia Esken, co-leader of the Social Democrats, called the participants “covidiots”. As a result, the calls for stricter regulations on the exercise of the right of assembly became as loud as the calls for a tougher approach in dealing with people who violate corona regulations.

Dealing with dissenting views

The Voltairean dictum, according to which the freedom to express even a dissenting opinion must be defended at all costs, does not seem to apply much these days. After the very important Black Lives Matter protests against racism, the political players in Germany fortunately reacted in a more appropriate and friendly manner, with the remark that the protesters should please respect the rules for social distancing. On the other hand, participants of the recent major Corona protest against restrictions of civil liberties have to endure insults as “covidiots”. This is a term that could possibly even amount to a punishable insult (para. 185 German Criminal Code). In view of the importance that the Federal Constitutional Court attaches to the freedom of assembly (BVerfGE 69, 315, mn. 67), this is disconcerting, to say the least; under no circumstances must the state give the impression that the legitimacy of a demonstration depends on the issue that is being protested against. Even that which is considered politically disagreeable or dangerous is worthy of protection. The claimed legitimacy deficit of anti-Corona demonstrations is all the more surprising as the Federal Constitutional Court has emphasized the importance of freedom of speech through assemblies particularly in – supposedly or actually – deadlocked political discussions. The Court states: “Demonstrative protest can become particularly necessary if representative bodies do not or not in time recognize possible social injustices and misdevelopments or accept them out of consideration for other interests.” On the one hand, the last few months were marked by a decreasing, then stabilizing and finally slightly increasing number of new infections; the original goal of the lock-down, to maintain the efficiency of the health care systems, had been achieved and politicians cautiously ventured a few steps towards easing Corona-restrictions. At the same time, however, verbal violence became increasingly present in political discourse; numerous politicians complained about the increase in hate mail and threatening letters. Conversely, those who were themselves addressees of hate speech are now making statements in the periphery of criminal liability, because the opinions expressed by demonstrators do not correspond with their own.

The call for tougher penalties

A call for tougher sanctions against those who violate the current laws created to combat the corona virus was voiced as a reflex response to the demonstration on August 1st. It is questionable, however, whether a raising of existing fines could actually contribute significantly to a decrease in the number of violations; empirical findings on negative general prevention (deterrence) speak against it. The demand seems more plausible as a contribution to positive general prevention, i.e. as a signal to the law-abiding part of the population that the law is being enforced. However, caution is required here since in its positive manifestation general prevention is in principle inherently without limits: it knows no restraint, it has no natural end, its (full) purpose is never achieved. For deviant behavior is to a certain extent normal in every form of human coexistence. Against this background, the demand of tougher sanctions is questionable. The idea of general prevention could lead to continuously stricter laws and higher fines if contrary to expectations violations of the law should not dissipate. This would ultimately lead to the establishment of draconian punishments and a brutalization of our society. That is why we must not lose sight of the principle of proportionality in this controversy – as is the case in the fight against pandemics in general. In other words: The state‘s actions should be oriented – also with regard to dealing with deviation from pandemic rules – towards the version of positive general prevention proposed by former constitutional court judge and law professor Winfried Hassemer: our response to deviation in society must be a humane one, so that the state’s manner of interacting with its citizens will stand as a beacon for citizens’ interactions among themselves and encourage humane public discourse.

At any rate, demanding tougher sanctions does not answer the question of enforcement of those sanctions. The threat of a sanction alone is not enough; what is needed are officials who register infringements and pass them on to the competent authorities, who then punish them. It is neglected in the discussion that those officials who are usually called upon to execute those duties – state and federal police, employees of public order offices and municipal field service, etc. – have been well occupied to date with the prosecution of non-Corona related offences. Thus, an increase in the frequency of sanctions could only be achieved if the existing personnel capacities were dramatically increased or if the prosecution of other non-Corona offences were put on hold. Whether the latter is intended, is questionable.

Even if there are calls for new powers to be given to train attendants or other private actors, for example on trains, in order to enforce the obligation to wear masks, it is forgotten that it makes perfect sense for police officers to have to pass a difficult entrance examination and undergo qualifying training, taking into account the psychological components of this profession. The special training ensures that state power is enforced legally and not, in certain circumstances, arbitrarily by private security services without the appropriate training and the necessary resilience in possibly difficult situations. That this is not always successful is shown by the current findings on racism in police work in Germany; it becomes clear that further professionalization with reflection on the problem areas is necessary, not “down-grading”. Vigilante groups and private security services, for example in the subway, would certainly pose new challenges in themselves, and it is doubtful whether those who call for tougher actions now will not regret their own calls in the future.

Social policy as prevention instead of repression

It is astonishing that politicians do not invoke the strengths of the German State: at least in part, it is access to an efficient health care system that protects against severe Covid-19 progressions. A fact now well documented by the figures also specifically from Germany. It is this that politicians could and should refer to this in order to strengthen public confidence in times of crisis. The health care system must be protected and maintained. Apart from this, it is also important to ensure a healthy diet throughout society, because it is a prerequisite for an intact immune system, which, as is well known, also protects against viral infections.

A further component is the participation of the general public in anti-Covid-19 measures. This can certainly be achieved more successfully by positive motivation (e.g. installing mask and disinfectant dispensers in certain places such as trains etc.; conducting studies to ensure proof for the success of the measures in the interest of transparency; course corrections when measures are not effective etc.) than by repression as a response to the confrontation of two completely hardened fronts at demonstrations, in trains etc. Dialogue instead of confrontation, inclusion instead of exclusion is necessary to get through these “special times” successfully. Punishments inevitably comes too late and contributes to a further hardening of fronts.

The importance of social policy as an element of criminal policy has already been pointed out by the famous criminal law reformer Franz von Liszt (“good social policy is the best criminal policy”); and Gustav Radbruch, too, was critical of imbuing criminal law with the task of compensating for social policy omissions with regard to the criminal individual. Politicians must point out and seize the many opportunities offered by good social policy instead of – in a recurring reflex – demand harsher punishments. When it really comes down to it, there are far more effective means to combat Covid-19 than punishment.

Fear eats up public discourse

The topic of protests against anti-Corona measures is much discussed and very heated. Surely there are some who are taking advantage of this crisis by utilizing many people‘s doubts about the appropriateness of our current Corona-policies for their anti-democratic purposes; caution is advised here. Nonetheless, respect for fundamental rights must be the top priority also in the fight against a pandemic. The question of the usefulness of the laws and regulations currently in force is deeply dividing our society. If we want to close the gap between those who have doubts about the proportionality of what is being done and those for whom regulations do not yet go far enough, a sober dialogue is urgently needed. Insulting people who, in exercise of their constitutionally guaranteed rights, make their opinions public does not help in ensuring a more objective debate, nor does calling for sweeping draconian sanctions even for the slightest of infringements. The fact that the principle of proportionality is all too often disregarded is shown by the recent attempts by some health authorities to threaten families with the forced removal of their underage children if they are suspected of harboring a corona infection and are not isolated within the household, i.e. separated from other family members. This completely disregards the fact that parental care is essential for any child’s recovery and cannot simply be transferred to other persons, as strangers cannot give the children the same degree of security that is absolutely necessary for the best possible immune system. In view of a looming progression towards a fascist-hysterical hygienic state (as envisioned by Göttingen constitutional scholar Hans-Michael Heinig), which surely nobody wants to see become a reality, the constitutional state should immediately reinforce its own validity by exercising the indicated respect for the constitutional principle of proportionality. This is urgently needed, both in terms of the debate and in the matter at hand.