Wien Sillevis Smitt

Prof. Rinner

Honors 210 B

14 December 2020

Justice, Prison, and Punishment in the United States and Germany

In Germany, prison is often associated with concentration camps and prison camps that

facilitated the murder of over six million Jews and other marginalized groups that did not fit into

the National Socialist ideolgy of an “aryan state.” In the United States, the prison system has

developed as a continuation of the racial hierarchy and oppression that was established with the

emergence of chattel slavery. These histories in regards to prison have established different ideas

of justice between the two nations. The transformation of justice as it pertains to prisons in

Germany reflects the nation’s work to address it’s bloody history; German prisons and their

officials consider prisoners as people first and attempt to humanize all aspects of imprisonment.

Comparatively, practices in the United States reflect a system of justice that attempts to isolate

and blame the individual for all of their crimes; harsh sentencing, deplorable prison conditions,

and a disproportionately affected demographic suggests that the United States has not reconciled

with the violence of its past, as its prison systems recreate and sustain racial hierarchies.

This paper will begin by tracing the history of the American penitentiary and justice

system through the end of the Civil War to the modern era, focusing on the plight of racial

minorities and how prison functions as an extension of violence and oppression towards them.

Then I will examine the development of the German prison and justice system in the Weimar

Republic, Nazi Regime, West Germany, and the re-unified German State. I will analyze the ways

in which theories of punishment offer insight into perceptions of what form justice should take
 Sillevis Smitt 2

and who is served by these ideas of justice. In closing, I will offer insight as to why the responses

to atrocities in both nations differed greatly, arguing that time, ideology, and culture play a

crucial role in the drastically different responses seen by both nations.

Prison, Punishment, and Justice in the United States

The modern penitentiary developed in Europe and the United States in the 18th and 19th

century. 19th. Following the Enlightenment in Europe, many philosophers denounced the public

displays of torture that were the typical consequence of lawbreaking in Europe and the American

colonies. The shift of the focus of punishment from the body to the soul led to the development

of the penitentiary (Foucault 16). While Michel Foucault’s ​Discipline and Punish​ is applauded

for its comprehensive explanation of the development of modern prisons, his explanation of the

development of prison and society does not account for the continued torture and bodily

punishment of enslaved and colonized individuals. Foucault’s assertion that the Western world is

a “non-practitioner” of torture “erase[s] the specificity of the body and violence,” leading to a

discourse that excludes conversations of how race distorts and complicates Foucault’s narrative

(James 25). Prisons in the United States are incredibly violent, inflicting both physical, mental

and emotional harms on prisoners. Policies that drive mass incarceration disproportionately

affect minorities in the United States. However, the belief that de facto equality resolves

centuries of inequality, oppression, and violence has led to willful ignorance by Americans who

are not directly affected by inequality. As an evolution of racial and economic oppression, the

American prison and criminal justice system reflects the nation’s refusal to acknowledge past

wrongs and ignorance of the modern plight of racial minorities in the United States.

Following the abolition of slavery with the 13th Amendment and the end of the

Reconstruction in the South, Southern lawmakers passed a series of laws known as anti-vagrancy
 Sillevis Smitt 3

laws or “Black codes” that exclusively targeted Black people for crimes like “loitering, breaking

curfew, vagrancy, having weapons, and not carrying proof of employment” (Equal Justice

Initiative). As a result, prisons were filled with recently freed slaves, who were then leased out

for profit by the prisons. This application of justice and the use of prison and punishment in the

American South clearly serves those in power by maintaining the economic and social hierarchy

of the South. The national government did not constrain the actions of Southern lawmakers, and

racist policies in the South eventually made their way North as former slaves fled the violence of

the South. In the 20th century, lawmakers used prison demographics, disproportionately filled

with Black Americans due to overtly racist laws, to argue that Black Americans were inherently

dangerous and thus justify segregationist policies (Muhammed). The example of “Black Codes”

and their lasting, diffuse impacts illustrates the manner in which prison has functioned as a tool

of racial oppression in the past. As a result, historically, justice in the United States serves to

preserve racial hierarchy, insulating the ruling class—wealthy white individuals—from

overthrow by emphasizing the natural superiority of whites.

While the same racial bribes are no longer overtly applicable in the United States,

narratives of criminality that emerged during the “War on Drugs” and “War on Crime” still serve

to primarily protect the ruling class in America. Mass incarceration and its policies are rife with

injustice, stemming largely from the violence of prisons and the racial disparities in who is

affected. Narratives of prison as institutions for rehabilitation are undermined by a lack of

funding and education programs that extend beyond GED qualifications, while the violence of

prison serves to worsen the mental state of the incarcerated (Bourgeois). In ​Just Mercy,​ Bryan

Stevenson describes the horrific conditions endured by children in adult prisons, being preyed

upon by both guards and prisoners and subsequently locked into solitary confinement for years in
 Sillevis Smitt 4

order to keep them from being harmed, resulting in severe emotional and mental trauma

(148-151). The violence of prison can be seen as a continuation of the violence inherent to racial

oppression. While not always sanctioned by the state, the violence of prison reflects the public

and government’s willful ignorance of issues of racial inequality and oppression and, as a result,

the continuation of gross injustice.

Bodies of government that have been charged with ensuring equality and maintaining

racial equality in the United States have neglected to perform their duties in favor of maintaining

the infrastructure of existing institutions. In the 1987 Supreme Court case ​McCleskey v. Kemp​,

McCleskey, a man sentenced to death for the murder of a policy officer, presented evidence of

racial bias on Georgia’s death row. Despite the fact that a black man was seven times more likely

than a white man to be executed for a similar crime, because the defense could not prove intent

to discriminate by the prosecutor or the sitting jury, the Supreme Court ruled that the racial

disparity on Georgia’s death row was tolerable. Michelle Alexander points to the closing of the

majority opinion as evidence that the decision was actually about protecting the rest of the justice

system from scrutiny of racial bias (111). The court explicitly cited concerns that the argument

presented a serious threat to the “principles that underlie our criminal justice system” because, if

racial bias was impermissible in the death penalty, it would be found impermissible in the rest of

the criminal justice system as well (​McCleskey v. Kemp​). The McCleskey decision reflects the

government’s acknowledgement of the racial disparities in the prison and justice system and its

subsequent refusal to take measures against it in favor of protecting the stability of government

institutions.

The American justice system fronts society as the one wronged by criminals. In criminal

cases, the defendant is always pitted against the state or the government. In combination with
 Sillevis Smitt 5

practices like minimum mandatory sentences, the American justice system reduces individuals to

the worst thing they have ever done and inflicts a life-long punishment on them for it. The

narrative that individuals can be reduced to their actions is a dangerous one; it ignores key

principles of both human rights and inherent human value. The racial disparities of the American

prison system in combination with the violence of prisons and the narrative that American justice

pushes presents a disturbing image of a nation that continues to oppress its most vulnerable

populations all while championing themselves as the pillar of democracy and equality.

Prison, Punishment, and Justice in Germany

Following Germany’s defeat in World War I, prisons and their functions in the Weimar

Republic attempted to address the rise in crime caused by hyper-inflation (Wachsmann 415).

Legal scholars at the time argued in favor of a prison system that would protect society from

criminals and prevent future crimes, centering their efforts on rehabilitation and incapacitation.

Initially, these goals for prisons were touted as utopian as they would correct deviant behavior

and protect the public. However, there was a distinction drawn between individuals who were

seen as reformable and those who were not. As tensions grew in the latter years of the Weimar

Republic, this distinction, initially seen as the path towards a utopian society, was reframed to

promote selection and eradication. The focus on the use of rehabilitation and incapacitation as

the purpose of prison suggests that justice serves society by removing or changing those who

wronged it. While rehabilitation is a reasonable goal for prison, the fact that not all individuals

were considered reformable by the Weimar Republic meant the system was vulnerable to the

political motives of the ruling party. Indeed, criminals belonging to political groups that were

seen as threats to the existing political order, like the communists in the Weimar Republic were

often given longer prison sentences than criminals belonging to groups that sustained the existing
 Sillevis Smitt 6

political order, like many right-leaning parties.

When the Nazis seized power in 1933, they refocused prison to be a deterrent for

committing crimes and rallying against the party. In a statement from November 1933, one

Ministerialrat emphasized the need for prison to be so brutal “that the fear of renewed

punishment shall become so vivid in the mind of the prisoner” that they shall be deterred from

committing more crimes once they leave prison (Picton 440). The focus on the use of brutality,

which in Nazi prisons meant beatings, forced labor, and starvation, indicates a theory of justice

that caters largely to the group in power. The National Socialist agenda of creating a “pure”

German nation-state and the violence it employed to attempt to meet that agenda suggests that

justice was something enacted to protect German society as the Nazis defined it. This led to the

extermination of political dissidents, groups seen as non-German and, as such, to the horrors of

the Holocaust. While a recentering on deterrence represents a shift in what justice meant in Nazi

Germany, the legacy of the late Weimar Republic is visible in the way the Nazi party was able to

select undesirable groups and exterminate them. The violence that came as a result of both the

deterrent and exterminatory purpose of prison and the ethnic-centered theories of justice, altered

the conversation surrounding justice, prison, and punishment, for the remainder of German

history up to the present.

The international reaction to the Holocaust and the crimes of the Nazis placed a spotlight

on how Germany would move forward. There are few accessible accounts regarding prison in

East Germany, but West Germany’s relationship with the United States and the rest of Western

Europe provided more transparency, especially in terms of prison. In a report comparing West

German prisons to American prisons, Ira Schwartz described the West German prison system as

“more humane and effective” than that of the United States (28). Hallmarks of criminal justice
 Sillevis Smitt 7

and prison in West Germany were harmonious coexistence between inmates and prison staff, an

emphasis on alternatives to prison, and fairly generous accommodations within the prison

itself—freedom to decorate one’s own room, a room of one’s own, easy access to medicine,

clean kitchens, and comprehensive education programs. In thirty years, West Germany

established a comprehensive prison system that focuses almost entirely on rehabilitation of

prisoners. Focusing on the rehabilitation of prisoners and the humanization of prison actively

recognizes human potential and respects human dignity. Justice serves society by reshaping

convicted individuals into more productive members of society, not by inflicting harsh

punishment on them or repressing them. Rehabilitation reflects an almost opposite conception of

justice than the Nazis’ deterrence and extermination through violence since rehabilitative

punishment leaves little room for targeted punishment of ethnic and political groups. It

represents an attempt to insulate the prison system from becoming a tool for genocide as it was

in the past.

Following reunification and into the 21st century, Germany’s prison system continues to

focus on rehabilitation. Much of Ira Schwartz’s 1976 report reflects the reality of the German

prison system in the present. An explicit and exclusive focus on rehabilitation in Germany

communicates the idea that every individual can contribute to society. Additionally, most

non-violent crimes do not result in prison sentences in Germany, resulting in a considerably

small prison population (Shames & Subramanian 6). Short sentences in Germany in general have

kept German prisons from becoming overcrowded, thus allowing for better, more comprehensive

rehabilitation programs in German prisons because monetary resources are not spread thin across

a vast carceral system. All of these aspects of the German prison system can be seen as a reaction

to their Nazi past. A prison system that centers humanity and the innate value of individuals is
 Sillevis Smitt 8

opposite to the systematic abuse and obliteration of human life that characterized Nazi prisons

and the Nazi regime as a whole.

Opposing Historical Legacies

German and American legacies of violence are not dissimilar. However, the states of the

current prison and justice systems in both nations highlight polar responses to crimes against

humanity. Where the German state reformed their prison system in an attempt to ​prevent​ future

violence, the United States evolved their prison system to ​maintain​ racial oppression and

violence. Whereas the American Prison system reduces an individual to their crime—to the

worst thing they have ever done—German prisons reflect a belief in human dignity and worth.

The causes for these discrepancies should be explored through international, theoretical, and

cultural narratives.

After World War II, the United Nations was established in an attempt to foster

international comradery and prevent future wars and atrocities. As one of its first actions, the

United Nations adopted the Universal Declaration of Human Rights (UDHR) to outline the

human rights every individual was innately granted. While the UDHR is non-binding, treaties

like the European Convention on Human Rights, which Germany has ratified, are. These

documents and treaties have both theoretical and legal impacts on how nations are behave in

regards to individual rights and their protection. Because of this new doctrine of rights and

intense scrutiny of Germany as it was rebuilt, Germany had to entirely reform the institutions

that made the Holocaust possible. Intervention by the United States and other Western states

ensured that Germany started to reverse it’s former course of violence. Prison, as an institution

central to the Holocaust, was reconstructed to humanize the prisoners, juxtaposing the Nazi

narrative of human disposability. Where Germany was scrutinized and provided with economic
 Sillevis Smitt 9

incentives as it was being rebuilt, the United States was not. Following the abolition of slavery,

the United States was not pressured by international actors to right the wrong done unto former

slaves, likely because the Civil War did not develop into a global conflict. While internal

pressures were applied by the North on the South during the Reconstruction, this was abandoned

in favor of political harmony.

Narratives of rights and equality for ​all​ individuals are fairly new; the concept of rights as

we see them today is largely the result of international activism following World War II. In

combination with a lack of international pressure, the United States was also not pressured by

morality. In the 1860s, Black people were considered morally and intellectually inferior to

whites. European nations engaged in—often brutal—colonization and defended their actions by

deeming the practices of African, Asian, and Indigenous peoples as morally perverse and arguing

that they were improving the quality of life for the native inhabitants of the land by bringing

them European technology. Virtually every nation that had the ability to influence the United

States was engaging in practices like these. To defend former slaves and advocate for equality on

their behalf would delegitimize the arguments nations made in favor of colonization.

Comparatively, the atrocities of the Holocaust and the systemic murder of an entire group based

on religion in such a short period of time was so horrifc that a new doctrine of rights was passed

in order to combat the brutality of the Holocaust. The large numbers of deaths globally following

both World Wars forced global actors to reconsider notions of humanity. Not incidentally, most

colonial powers granted their colonies independence in the subsequent decades.

The United States has long upheld itself as the leader and protector of democracy.

Education in the United States, especially at the elementary level, often lacks a critical lens, and

many individuals who are not encouraged to engage critically with American history do not. As a
 Sillevis Smitt 10

result, the idea of American exceptionalism—that the United States is inherently and always

superior to other nations—is maintained at the expense of the minority populations the United

States has historically abused. Looking critically at American prisons and their history requires

Americans to recognize an uncomfortable reality: that the United States has always excluded

people from the notion of equality and, as such, cannot truly be considered superior in the realm

of democracy and equality. This notion of exceptionalism serves to obscure America’s violent,

hypocritical past as it enslaved and slaughtered Black, Brown, and indigenous people in the

name of freedom and equality. Because addressing racial disparities and violence in prisons

requires reflection on and reconciliation with America’s hypocritical, racist past and a

surrendering of white privilege, the issues go unaddressed and prison continues to be used as an

instrument for maintaining the hierarchy that benefits white Americans.

Conclusion

Prison, punishment, and justice in the United States and Germany have developed and

evolved in dramatically different ways. Despite having comparable legacies, only the German

model of prison and justice reflects an attempt to address a violent past. While neither nation can

truly ever make amends for the violence it committed, the German model of prison, at the very

least, attempts to prevent future atrocities from occurring. In contrast, the American model of

prison is an extension of racialized oppression and violence and reflects a shift in the method of

oppression. These vast differences in reconciliation and reconstruction can be attributed to

differing levels of international scrutiny, different dominant ideologies in different time periods,

and the American belief in the United States’ infallibility. In a nation that has maintained a

narrative of superiority to insulate itself from an uncomfortable past, reconciliation and progress

only have one reality: everything must change or nothing will change.
 Sillevis Smitt 11

Bibliography

Alexander, Michelle. ​The New Jim Crow.​ The New Press, 2012.

Bourgeois, Jeremiah. “The Irrelevance of Reform,” ​Ohio State Journal of Criminal Law,​ vol. 11,

no. 1, 2013, 149-159.

Davis, Angela. ​Are Prisons Obsolete?.​ Seven Stories Press, 2003.

Foucault, Michel. “The Body of the Condemned,” ​Discipline and Punish: The Birth of Prison.​

Translated by Alan Sheridan. Random House, 1995, pp. 3-31.

Gilmore, Ruth Wilson. ​The Golden Gulag: Prisons, Surplus, Crisis, and Opposition in

Globalizing California.​ University of California Press, 2007.

James, Joy. “Erasing the Spectacle of Racialized State Violence,” ​Resisting State Violence:

Radicalism, Gender, and Race in U.S. Culture.​ University of Minnesota Press, 1996, pp.

24-43.

Levitsky, Steven, and Lucan A. Way. “Linkage versus Leverage. Rethinking the International

Dimension of Regime Change.” ​Comparative Politics,​ vol. 38, no. 4, 2006, pp. 379–400.

McCleskey v. Kemp.​ 481, U.S. 279, 327. U.S. Supreme Court, 1987.

Muhammad, Khalil Gibran. “The Mismeasure of Crime,” ​The Condemnation of Blackness:

Race, Crime, and the Making of Modern Urban America.​ Harvard University Press,

2010, pp. 1-14. ​JSTOR,​ www.jstor.org/stable/j.ctvjsf4fx. Accessed 7 Dec. 2020.

Picton, Harold. “Justice in Nazi Germany.” ​The Contemporary Review​, vol. 156, 1939, p. 439.

Schwartz, Ira. “West German Prisons: Humane and Sane.” ​The Prison Journal (Philadelphia,

Pa.),​ vol. 56, no. 2, 1976, pp. 28–31.

Shames, Alison & Ram Subramanian. “Sentencing and Prison Practices in Germany and the
 Sillevis Smitt 12

Netherlands: Implications for the United States,” ​Center on Sentencing and Corrections.​

VERA Institute of Justice, October 2013.

Stevenson, Bryan. ​Just Mercy​. Spiegel & Grau, 2015.

Wachsmann, Nikolaus. “Between Reform and Repression: Imprisonment in Weimar Germany.”

The Historical Journal,​ vol. 45, no. 2, 2002, pp. 411–432.,

doi:10.1017/S0018246X02002455.