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Imprisonment in transition: the situation in the new states of the Federal Republic of Germany.

The article describes the situation of the prison system in the new federal states of Germany after the reunification in 1990. The main problems (as seen by the new prison authorities) are security issues and not the improvement of facilities for rehabilitation. The paper deals with the problems of overtaking and integrating the prison staff of the former GDR and of establishing living conditions for the prisoners which meet the standards set by the (West German) Prison Act of 1977. The second part of the paper deals with disparities in the development of prison regimes in comparison with the old federal states. Similar disparities can be observed in the new federal states, partly as a result of the West German `export' of prison administrators. Finally, proposals are made for East and West German prison reform.

Horror Images of the East and Incomplete Reform in the West

It is no coincidence that the title of this paper refers to the classic book on prison reform by Schuler-Springorum, Strafvollzug im Ubergang (Imprisonment in Transition), which was published in 1969, for the conditions in the new federal states are very similar now to those which pertained then in the West. Various evaluative studies which appeared at the end of the sixties noted that the prison system in what was then West Germany was in a transitional phase of conflict and emerging change (see, inter alia, Calliess 1970: 116). This indubitably applies also to the new federal states today. However, the problems of renewal are different in the sense that the drive for `reform' has not emerged organically from a wider movement for societal improvement (in the West it was a by product of the social-liberal reform movement). Instead the impetus has come from above, that is from prison experts imported from the West and installed in influential positions in the ministries and in positions of authority in the prisons. Furthermore, in contrast to the seventies, the social climate is not notably liberal.

The priority in reforming the prison system of the new federal states is guaranteeing security, by which is meant making the prisons escape-proof, a project for which millions of marks have been made available. Saxony, for example, has started a building programme which in all will cost more than a hundred million marks. In 1992 DM9m have been spent on doors and bars alone, in order to make the prisons somewhat more secure (see Der Spiegel 1992, 21 September, p. 97).

Attention needs also to be paid to implementing prison sentences in a manner compatible with the principles of the Rechtsstaat but, as will become apparent, even the modest requirements set by the West German Prison Act (Strafvollzugsgesetz), which is now applicable throughout Germany, are not being met. Guaranteeing minimum standards in the sphere of housing prisoners has created difficulties. It is not possible even to begin thinking about developing a treatment-orientated mode of implementing prison sentences (see the following two sections).

The prison system epitomized the inhumane policies of the old GDR. Horror images based on reports of the experiences of victims of the GDR prison system have been around for years (see e.g. Lolland and Rodiger 1977; Thiemann 1986; during the time of the change: Heyme 1991). However, reunification and the resultant opportunity to take over the buildings and the personnel or the GDR prison system have given particular significance to this bit of East German history. The extravagant reports by western practitioners and media on conditions in the East, should not obscure the fact that, at least since the end of the seventies, reform in the West has stagnated. The failure on budgetary grounds to implement the transitional arrangements of sections 198 to 201 of the Prison Act has `ruined' the legislation (Calliess and Muller-Dietz 1991, n. 1 to s. 198). Indeed, reform in the old Federal Republic has remained an empty shell, if one thinks about remuneration for prisoners in relation to their work performance or about their inclusion in general health and pension insurance schemes.

One cannot dismiss the danger that with German unification, standards in the prison system as a whole will converge on a middling level, if in old federal states personnel numbers are reduced (in part as a result of a reduced number of prisoners) and in the new federal states money is spent only on the most essential security measures. The incomplete reforms, based on the principle of the Sozialstaat in the West, also affect the legal arrangements in the East, for by the stroke of a pen unification introduced western legislation into the new federal states. Although in the former GDR prisoners were not given the same wages as workers outside, they did at least get 18 per cent of what free labourers earned and thus proportionately three times as much as prisoners in the West (see s. 24 of the Prison Act of GDR in connection with s. 18 of the First Implementation Act of the 1977 Prison Act of the GDR). In addition, they were integrated into the national pension system (see s. 6(3) of the Prison Act of the GDR).

Personnel and Rates of imprisonment in the East: Opportunities for a New

Penal Policy?

Before the amnesty at the end of 1989, there were over 31,000 prisoners in the former GDR (31,150 at 20 October 1989, see Blei et al. 1990: 13). This meant that there were 188 prisoners per 100,000 of the general population, more than double the ratio in the Federal Republic of Germany before unification. By March 1990 the absolute number of prisoners in the former GDR had been reduced to 6,903 (at 20 March 1990). The ratio was now 42 per 100,000 of population, even lower than that of the Netherlands (1 September 1990: 44 per 100,000, see Prison Information Bulletin 16, Strasbourg 1992: 29). Admittedly, the effect of previous amnesties in the GDR had been exceptionally shortlived. In 1972, 1979, and 1987 the previous number of prisoners had been reached again within at most a year (see Blei et al. 1990, app. 4), but in the light of changed penal policies a repetition of these previous patterns is unlikely. Even if there is a further increase in crime in the new federal states there is a real opportunity to keep the rate of imprisonment lower than that in the old federal states. This is all the more so because the trend towards a reduced number of prisoners has continued to the beginning of 1993. On 31 March 1993 there were only 5,639 prisoners in the new federal states. This amounted to an imprisonment rate of 35 per 100,000, the lowest in Europe! (see Table 1 and Fig. 1; on 31 March 1992 the total prison population of 3,648 was even lower and is increasing now apparently as a reaction to violent right wing crimes against asylum seekers etc.). The new federal states, therefore, (still) have an imprisonment rate which is about 25 per cent lower than that of the Netherlands, generally regarded as the `front runner' in liberal penal policies (see, however, on changing trends in recent times Blankenburg 1991). In internal comparisons of the new federal states the rate of imprisonment varies from 23 in Thuringia to 49 in Brandenburg (at 31 March 1993), but nowhere reaches the level of the West (see Fig. 1). These low rates of imprisonment cannot be attributed to a particularly progressive penal policy giving priority uncompromisingly to alternatives to imprisonment, but rather reflect the effects of the migration of criminals (in the sense of the advertising slogan `go West') and the inadequacies of prosecuting practices.

Although the number of prisoners, particularly those in pre-trial detention, has increased in recent months (to a total of nearly 5,700 in March 1993), inter alia as a result of crimes of violence against foreigners, planning for increased capacity of the prison system in the former GDR seems completely misguided (see Muller-Dietz 1992: 33 and also Metkemeyer 1991: 31 ff.). Even allowing for the fact that many of the buildings in the East are in a poor state of repair, a programme of building new prisons and extending prison capacity is not justifiable.

The assumption in the ministries of the new federal states is that the imprisonment rate will reach 100 per 100,000 of population, a figure which has not even been reached in the old federal states where, in the period from 1991 to 1993, there was a significant increase from 75 to 92 per 100,000, or 23 per cent (see for the situation in the eighties up to 1991 Dunkel 1992: 9 ff.). Imprisonment rates - and this can be seen from international comparisons - are not `fate' but can be controlled by criminal and social policy. In times of economic recession cost - benefit analyses should be seriously considered. In general, they do not justify a quantitative extension of the prison system (see Dunkel 1987).

The objective of a rational penal policy in the new federal states should be to absorb the visible and predictable increase in criminality by developing non-custodial alternatives to imprisonment. This is all the more necessary as, in contrast to the prison system, the structures for implementing non-custodial sanctions are still rudimentary. If a properly functioning probation service can be built up relatively quickly and new ways can be found of revitalizing active participation by citizens (which formerly operated through the so-called community courts and conflict resolving commissions), the current low rate of imprisonment could be kept relatively stable. In some of the old federal states there are also relatively low rates of imprisonment, for example in Schleswig-Holstein (53 per 100,000 on 31 March 1993), Saarland (71) and Lower Saxony (73). The average in the old federal states was 92 at 31 March 1993 (see Fig. 1).

The dramatic decline in the rate of imprisonment has had a curious impact on the ratio of personnel to prisoners. Whilst at the end of 1989 there was still one prison officer for every four prisoners, the ratio was reduced at the beginning of 1990 to 1: 0.9. In terms of establishment at least, this allowed the prison system of the GDR to compare favourably with leading European countries such as the Netherlands or Sweden (see in this regard Tournier and Barre 1990: 22 ff.; however, they include only security and administrative personnel and the prison management personnel in their comparison with other European countries).

According to a survey of the western federal states conducted by the Ministry of Justice of Lower Saxony, in 1990 there were 28,743 prison officers for an average daily prison population of 50,657 prisoners, which amounted to a ratio of 1:1.8. From the point of view of established posts, the prison system in the East was in a better position to provide a qualitatively superior prison service. However, a large number of the prison officers there had collaborated with the Ministry of State Security, or were `contaminated' in other ways, so that their further employment could not be contemplated. This was, for example, one of the reasons why in Berlin only one third of the prison officers working in the East of the city were judged to be re-employable (see Flugge 1991: 39; according to the ZfStrVo (1992: 383), 619 of approximately 800 employees asked to be retained and of these 318 were finally re-employed). Immediately after reunification, the senate of the city-state of Berlin closed all five of the prisons which it had taken over in the eastern part of the city and moved the remaining approximately 300 sentenced and unsentenced prisoners to prisons in the western part of the city (Flugge 1991: 38). Of course, this possibility did not exist in the other new federal states, so that work had to continue with former personnel, in buildings which were often dilapidated. In Saxe-Anhalt the number of staff posts was reduced from 1,800 in October 1990 (the date of German reunification) to about 1,100 in 1993. The ratio of staff members to prisoners is about 1:1 and, therefore, still very good. In Saxony, however, a considerable proportion of the previous personnel have been discharged. The ratio is 1: 1.4 (worst in pre-trial detention: 1: 2.5).

Even if it is possible, after the process of evaluation has been completed, to retain only some of the previous employees, the question remains whether it necessarily follows that the number of posts should be reduced. Should the opportunity not rather be used to create a qualitatively better prison service? At the very least, the structure of the posts should be changed, for of 7,865 established posts in the prison system of the GDR on 1 October 1989 only 731 (9.3 per cent) were not for guards or officers (calculated from Blei et al. 1990: 18 ff.). Of the `civilian' employees, most were employed in support services such as nursing etc.

Restructuring of the staffing structure to provide for the appointment of more professionals such as social workers and psychologists, who were hardly represented at all in the prison service of the former GDR (see Arnold 1990: 327), should be extended to that part of the service which deals with pre-trial detainees - an area which has also been neglected in the old federal states. This is all the more important because, as a result of the difficulties in making the criminal justice system function efficiently, there is an inflated number of pre-trial detainees. From the statistics of the federal Ministry of Justice it can be seen that at the end of September 1992, of 4,491 prisoners in the new federal states, no fewer than 47.3 per cent were pre-trial detainees! There appears to be a similar problem in all the new federal states, with the range being from 44 per cent in Brandenburg and Thuringia to 50 per cent in Saxony and 52 per cent in Mecklenburg-Vorpommern. The average percentage of pre-trial detainees was nearly 50 per cent higher than in the western federal states (31 March 1993: 30 per cent, see Table 1), probably because of the inability of the over-extended judicial system to deal expeditiously with what, in absolute terms, are relatively few pre-trial detainees. Some progress, however, can be seen: in 1992 the ratio of pre-trial detainees was 52 per cent overall and in some states like Saxony amounted to 60 per cent. In this context there are demonstrable disadvantages in the policy adopted in the new federal states of first developing the ordinary probation service and only then a system of probation officers responsible for pre-trial inquiries on adults, attached to the courts (see Finger 1991: 170). In practice, there is a widespread shortage of such assistance, which could be used to avoid pre-trial detention. The excessive number of pre-trial detainees is evidence of the necessity of extending court-based social services as a means of assisting the decision on whom it is necessary to detain. In addition it would be sound policy to require compulsory legal representation for all, as was introduced in 1990 for juveniles (see para. 68 (4) of the Juvenile Justice Act).

Indicators of Structural Problems

Table 1 gives some further indicators of the particular problems of the prisoner profile in East German prisons. In addition to the inflated number of pre-trial detainees overall, there are peculiarities in age structure. Juveniles (9 per cent) and young adults (20 per cent) comprised proportions three times larger and twice larger respectively, of the total number of pre-trial detainees in the new federal states than in the old federal states. It is true that at that time (31 March 1993) right-wing extremists and other violent offenders did not form a very significant group. Hence, the detentions must have been for `classic' criminality, for which there were no adequate alternatives to detention. It would appear as if the efforts required by the Juvenile Justice Amendment Act of 1990 to prevent pre-trial detention (for example, by systematically introducing legal aid for juveniles at an early stage) were not being made with equal vigour in the East. Without in-depth analysis of the data it cannot be concluded with certainty that these figures are the result of a practice of detaining unconvicted persons too extensively. Some reports from practitioners, however, indicate that pre-trial detention has been used rather extensively because of the lack of alternatives and the feeling of judges that the public requires a tougher approach to a rising problem of juvenile crime. There is a great danger that pre-trial detention is being misused as a `weapon' in fighting crime and that it will function as a `preventive sanction' if judges feel helpless. Developments should be watched closely to ensure that public criticism of the courts as too lax is not reflected in the working practices of the judges responsible for detention.

Turning to sentenced prisoners, we have statistics about the terms which these prisoners are expected to serve. The amnesties and the release of prisoners serving short sentences since 1989 have left behind a large number of long-term prisoners in the East. The latest figures show that more than two thirds of all prisoners had sentences of more than one year to serve (one year earlier it had been as many as 75 per cent), whilst in the West the equivalent figure was only 56 per cent. Accordingly, fewer prisoners in the East were in the immediately pre-release phase (19.5 per cent in comparison with 21 per cent in the West with less than six months to serve and 13 per cent in comparison with 23.5 per cent with sentences between six months and one year to serve; see Table I). The extremely low number of prisoners in open prisons can partly be explained on the same basis (4.2 per cent compared to 22.2 per cent, see next section).

[TABULAR DATA OMITTED]

There are only about 300 sentenced prisoners in juvenile prisons in East Germany; so few that they could become neglected. It may be difficult to offer the required opportunities for education and resocialization (see para. 91 of the Juvenile Justice Act). In the only penal institution for juveniles in the state of Saxony, for example, up to mid-1993 there were no facilities for schooling or professional education, with the result that prisoners serving long juvenile punishments were `farmed out' to Baden-Wurttemberg Bavaria in order to avoid the sentence becoming merely a form of containment. The statutorily prescribed separation of adult and juvenile pre-trial prisoners has often not been enforced (as is sometimes also the case in the old federal states, see Dunkel 1990: 149 ff.). Furthermore, the staff complement in respect of so-called professional services (social workers, psychologists, educationists) does not begin to approach the standards achieved in the West. One of the only two social workers employed by the state of Mecklenburg-Vorpommern worked in the state juvenile prison, Neustrelitz. In the meantime he has left the East German prison service of Mecklenburg-Vorpommern again and gone back to the old federal states. No successor has yet been able to be found. Even with assistance imported from the West, adequate care cannot be guaranteed to juvenile or to adult prisoners. The resulting shortcomings in preparation for release are aggravated by the fact that with the repeal of the 1977 Reintegration Act of the former GDR, prisoners are significantly worse off in respect of housing and employment after their release.

One of the main problems of the current prison system is providing accommodation for prisoners which meets the requirements of human dignity. The antiquated prisons were designed (following the example of neighbouring socialist countries) to house prisoners in large communal cells. Since s. 201(3) of the newly applicable Prison Act prohibits housing more than eight prisoners in a cell, changes to the physical structure were unavoidable, although the lower occupation rate (31 March 1993: only 52 per cent as against 98 per cent in the West) has made the changes easier to implement. Nevertheless, communal accommodation remains the norm and the goal set by s. 18 of the Prison Act (that every prisoner should be in single accommodation during rest periods) is routinely not met. On 31 March 1993 71 per cent of the prisoners in the new federal states still had to share their cells with another prisoner. In the West the proportion was 42 per cent, which is clearly less but which does not come near to meeting the objective of s. 18 of the Prison Act (see Fig. 2). Particularly unfavourable in this respect are the prison conditions in Brandenburg and Mecklenburg-Vorpommern, where 78 and 84 per cent respectively of the prisoners are in communal accommodation. It has been recognized internationally (see Rule 14.1 of the European Prison Rules) that minimum standards of human dignity require that prisoners have the possibility of withdrawal into an undisturbed private sphere (although admittedly this principle is often inadequately respected; even in the Netherlands where accommodation in single cells has hitherto been applied far more rigorously than in other European countries, it has been questioned seriously in the face of increasing numbers of prisoners, see the report in ZfStrVo 1992: 378).

Open Prisons

Regional inequality in the West and structural shortcomings in the East

The provision and use of open prisons which the legislature required in the Prison Act has also led to an unforeseen degree of variation in interpretation, both at state level and at the level of individual institutions. Although the weight placed in judicial interpretation on the provisions of the Prison Act has increased enormously, greater consistency in, for example, the practice of granting furloughs, has not been able to be created in the face of indeterminate legal concepts and the acceptance by the courts that officials are allowed to exercise wide discretion.

Often the statutory provisions have been too indeterminate to be able to prevent interpretations determined by the interests of individual institutions. An example is the definition of an open prison, which in s. 141(2) of the Prison Act is described only in terms of absent or reduced security measures. Thus some states, such as, for example, the state of Baden-Wurttemberg in the case of the prison in Ulm (which can hardly be seen as having 'reduced' security measures) have defined more or less closed institutions as being open. Conversely, in Bavaria the relatively open institution, Laufen-Lebenau, is run as a 'closed prison' (see in this regard Bohm 1986: 97 ff.; further Dunkel 1982: 680 ff.).

In addition to differences about the definition of open prisons, there is also considerable variation amongst the old federal states in the extent to which use is made of such prisons. Thus on 31 March 1993 there was, for example, a range of use from 7 per cent in Bavaria and 10 per cent in Schleswig-Holstein to 32 per cent in West Berlin and 33 per cent in Hamburg in relation to adult sentenced prisoners held in open institutions. The city-states, who certainly do not have less difficult prisoners than the other federal states, have an above-average number of prisoners in open prisons. The same can be said for Lower Saxony (30 per cent) and North Rhine-Westphalia (30 per cent). Bavaria, the other southern federal states of Rhineland-Palatinate (14 per cent), Saar (19 per cent) Baden-Wurttemberg (18 per cent), and - as mentioned above-Schleswig-Holstein have below average rates (average for the old federal states is 22 per cent). This indicates that, with the exception of Schleswig-Holstein, there is a difference between the North and the South when it comes to the development of open prisons. Although it might be questionable whether, given the strictly selected prison population, the objective set by section 10 of the Prison Act, that open prisons should become the norm, can be achieved (which would also raise the question whether prisoners who are unlikely to abscond should not be sentenced to probation instead), the objective set by section 10 should nevertheless be realizable to the extent that all prisoners with sentences of less than one year should as a rule be sent to an open prison immediately, and others during their release phase at the latest. Even the northern federal states appear still to be far removed from this goal. Certainly the figures for the prison population on any particular day do not immediately show this to be the case. The so-called short punishment programme in Baden-Wurttemberg (immediate admission to open prisons for prisoners in fixed employment, who are sentenced to terms of less than a year, see in this regard Dolde 1989, 1992) has also not had a significant impact on these statistics.

In relation to the new federal states the question is what importance will be attached to open prisons, since they did not exist at all in the former GDR. The answer is influenced significantly by the `guardianship' of the old federal states. `Guardianship' means that there are specific relationships between some old and the new federal states. The administration in the new federal states has been built up by sending staff from the old states to the `partner' states. So, for example, the staff of the prison administration in the Ministry of Justice and also most of the prison governors in Saxony are persons who have been sent temporarily (some of them into permanent posts) from Bavaria and Baden-Wurttemberg.

On 31 March 1993 only 459 (4.2 per cent) of the 10,874 prison places in the new federal states were allocated to open prisons. Of these 139 places were in Brandenburg, 298 in Mecklenburg-Vorpommern and 22 in Thuringia, whilst no such places existed in Saxony or in Saxe-Anhalt. Only 95 adult prisoners (4.29 per cent of the adult prison population) were actually in open prisons on that day, with only eight of the 309 young offenders in open youth prisons (2.6 per cent). Only in Brandenburg, the only eastern state with a social democratic government, are open prisons of some importance in practice (13.4 per cent of adult prisoners in open institutions). In other cases, such as Mecklenburg-Vorpommern, this means that even where the capacity to hold prisoners in open prisons exists, it was used only minimally in the face of the dominant focus on security. There are undeniably structural problems as well brought about by the regional location of the institutions (for example, the institution, Ueckermunde, in Mecklenburg-Vorpommern is located in an out-of-the-way place close to the Polish border, far from the home towns of most prisoners, which makes preparation for release much more difficult), the shortage of care, and difficulties in identifying suitable prisoners. Nevertheless, it remains likely that in the rebuilding of the prison system of the former GDR, security will continue to take priority over the provision of open accommodation. This means that even less attention will be paid to the social-welfare objectives of the Prison Act (i.e. the objectives derived from the concept of the Sozialstaat) in the new than in the old federal states.

The most far-reaching reforms in the implementation of prison sentences in the seventies related to relaxation of the prison regime and furloughs (home leave). In the period 1977 to 1990 alone, the number of furloughs and day leaves (Ausgange, i.e. short periods of leave) per 100 prisoners increased almost fourfold, without any increase in abuse of these measures in terms of not returning to prison or committing crimes during the leave period (see Dunkel 1992; 1993c).

Here also there are regional differences, which have less to do with the type of inmate (proportion of those highly likely to abscond etc.), than with different ways of implementing prison sentences. Variations in the approach of the ministries of the different states are undoubtedly also of significance. Thus, after the controversial decision of the Federal Supreme Court on the admissibility of taking the heinousness of the offender's conduct into account (see, in particular BVerfGE 64: 261 ff., and the overview in Calliess and Muller-Dietz 1991, nn. 10 ff. to s. 2 of the Prison Act), Baden-Wurttemberg was the first state to issue a general instruction to prisons to consider this factor when deciding on temporary release of prisoners. It did so although the Federal Supreme Court had decided only that it was not unconstitutional to take the heinousness of the offender's conduct into account when deciding on relaxations of the regime, and had not held that it was compulsory to do so. The practically unanimous condemnation of the decision by scholars stands in contrast to the support which it received from some practitioners (see the references in Schuler-Springorum 1989: 262 ff.). In August 1987 Bavaria followed the lead of Baden-Wurttemberg and issued a similar general instruction making it compulsory for the heinousness of the offender's conduct to be considered when deciding on relaxation of the prison regime. These policies are a reflection of the generally restrictive interpretation of the provisions of the Act that has been adopted in these two states.

Other federal states did not adopt the same policy. In contrast, in the eighties they continued to develop further the practice of creating more open prisons. The result is that while the numbers of furloughs (Hafturlaub) per 100 prisoners remained constant or even declined in Baden-Wurttemberg and Bavaria since the middle of the eighties, they are now two to four times less than the figures reached in states such as Bremen, Berlin, Saar, and North Rhine-Westphalia (see Dunkel 1992b: 467 ff. and Fig. 3).

An even more extreme range of variations may be found in the granting of permission for short absences from prison (Ausgang). Bavaria with 228 per 100 prisoners was at the bottom of the table, whereas Hesse and Lower Saxony (with 1,676 and 1,766 respectively) had rates seven to eight times higher. The average in the old federal states was 1,031 in 1992 (see Fig. 4). In 1992, for the first time, figures for furloughs etc. have been reported in the new federal states. They are much more restrictive than the old states: the ratio of permissions for day leaves (Ausgang) being 230:1,031 per 100 prisoners, the one for furloughs (i.e. several days of absence from prison, regularly up to 21 days, exceptionally up to 28 days per year) was 120:659, see Figs. 3 and 4).

Permission to work outside prison (Freigang) equally reveals the different priorities of the individual federal states, with a significantly greater emphasis on allowing prisoners to work outside prison in Rhineland-Palatinate (55 permissions per 100 prisoners in 1992), North Rhine-Westphalia (60), Saar and Bremen (61), whilst in Hamburg (27) and in Schleswig-Holstein (34), this form of relaxation of the prison regime was used relatively seldom. In the new federal states (due also to the high unemployment rate in general) work-release prisoners are an extreme exception only eight permissions per 100 prisoners, in comparison to 47 in the old federal states). Again it is possible to see the more liberal approach in the social-democratic governed Brandenburg (21), whereas in Mecklenburg-Vorpommern and Saxe-Anhalt, work-release programmes did not exist at all. The general economic problems resulted in a loss of jobs of two thirds of work-release prisoners in Brandenburg and of more than 40 per cent in Saxony. In no case was this due to abuse of the programme (not returning back to prison in time etc.).

Some statistically observable changes can be explained in the context of a general socio-political shift. After changes of government in Saar and in Schleswig-Holstein, for example, the number of furloughs, short periods of leave and of prisoners permitted to work outside prison (Freigang (work release)) more than doubled (see, in summary, Dunkel 1992a: 23 ff., 1993c 651 ff.). It is noteworthy in this context that the resulting significant increase in measures relaxing prison regimes have not led to their being abused increasingly. The argument that the restrictive use of such measures is justified in order to protect the public (see Bolter 1991, for Baden-Wurttemberg) cannot be sustained in the face of this evidence. Obviously there must be a thorough examination of the risk of prisoners failing to return or abusing such opportunities, but further serious offences against the person are so rare that they cannot be predicted with certainty by the prognostic techniques available to the prison authorities. It follows that, in practice, relaxing the prison regime should only be denied in those instances where there is a clearly identifiable risk that the prisoner will not return or abuse the opportunity. There is no empirical confirmation of the general presumption, which is created by the administrative regulations for the implementation of sections 11 and 13 of the Prison Act, that certain categories of offenders, in particular those convicted of sexual or violent crimes or drug offences, are not suitable candidates for furloughs. Underlying the regulations are hypotheses about the likelihood of specific categories of offenders reoffending; but these hypotheses have since been refuted. The probability that an offender who has been convicted of a crime of violence will again commit such a crime is extremely small, when the category of violent offenders is considered as a whole. An investigation in Schleswig-Holstein did not reveal the existence of any single category of offenders who were particularly at risk. In addition, there was not a single case of an abuse of the relaxation of the prison regime leading to the commission of a serious offence. The study of 303 adult male prisoners who had been granted furloughs (2,394 separate furloughs were involved) showed that only 14.5 per cent did not return from one of the several furloughs (an average of 7.9 per prisoner) which they were granted. In 5.9 per cent of the cases there was a report that the commission of an offence was suspected; as a rule these were minor offences, such as driving without a licence or petty assault. In the case of day leave the default rate was still lower (failure to return on time: 6.0 per cent; suspected commission of an offence: 2.3 per cent, of which none was a serious offence, see in summary Dunkel 1992a: 101-5).

There is a danger that the development of furloughs and other relaxations of the prison regime in the new federal states will also be strongly influenced by the divergent interpretations of the Prison Act in their `guardian states' of the old Federal Republic. This appears to be what some of the `receiving states' desire, when they say, for example, `that in all areas Saxony will reach the level of Baden-Wurttemberg or Bavaria' (Pelz 1991: 159). Where the extent of relaxations of the prison regime are concerned this is a very modest goal. Perhaps Saxony should not model itself too closely on the two southern states. However, as almost all prison directors and senior officials in the ministries of justice are from the old federal states, it will be difficult to develop new policies for administering prisons. In any event there remains considerable scope for the science of penology to develop the implementation of the Prison Act in the new federal states.

Disciplining prisoners, penal mentalities, and conflict management

Further noteworthy regional differences are to be found in the old federal states in the sphere of formal disciplinary sanctions. In general one can observe a nearly constant number of disciplinary measures in the prisons since 1982 and a slight decrease since 1988.

If one compares across states only the most intensive form of punishment by the prison governor allowed by the Act, solitary confinement of up to four weeks, one finds extreme variations: from 0.4 instances of solitary confinement per 100 prisoners in Bremen and 0.8 in Rhineland-Palatinate to 16.6 in Hamburg and 19.0 in Bavaria (average in the old federal states, 9.6; see for data up to 1990: Dunkel 1992b: 464 ff.). This makes it clear that in this sphere there are different styles of sanctioning or mentalities of punishment at work, and that the conduct of the prisoners (including their legal and socio-biographical characteristics) plays only a subordinate role. As one might expect, the potential for conflict varies amongst penal institutions with different types of inmates, but differences are also found amongst institutions where there are no such variations, for example, amongst institutions housing prisoners serving long terms of imprisonment. It is noteworthy that the significance of solitary confinement as a form of punishment has declined in the past 20 years. (In 1970 solitary confinement was imposed on 30 per cent of prisoners, in 1990 it was only 10 per cent, see Dunkel 1992a: 32 ff.). The call for the abandonment of solitary confinement as a traditionally repressive form of punishment appears to be realistic, as some states such as Berlin, Bremen, Lower Saxony, and Rhineland-Palatinate do not use it, or hardly use it at all any more.

On the other hand, one cannot overlook the danger that, in practice, other means of isolating prisoners will be found, for example, by detaining them in a particularly secure area (as well as detaining them in single cells), as an exceptional security measure imposed under section 88 of the Prison Act. The suspicion that these various measures are interchangeable arises particularly in Berlin and Bremen, where below average use is made of solitary confinement as a disciplinary measure, but the exceptional security measure of the `cooler' is applied in more than the average number of cases (see, for Bremen, the empirical analysis of Hoffmann 1990). It seems possible that solitary confinement could be restricted in favour of other disciplinary measures such as informal conflict resolution. (The possibility of also using restitution or compensation of victims by offenders inside the prison should be examined.) It cannot be overlooked that there has been hardly any empirical research on informal sanctions in prison and that the officially registered disciplinary and security measures may only be a small element in controlling conduct in prison. Thus it is known, for example, that from the point of view of the prisoners, the so-called leave prohibition is a far heavier penalty than formal disciplinary measures. It is not mentioned in the list of disciplinary measures in paragraph 103 of the Prison Act, but has the practical effect of such a measure. The same applies, for example, to denial of permission to possess the materials required for the pursuit of a hobby, which may be granted under paragraph 70 of the Prison Act.

The Prison Act gives the prison authorities wide powers to discipline prisoners formally. The importation of prison governors from the West will presumably lead to the adoption of the modes of sanctioning of the `guardian states'. There remain the legal safeguards of the right of appeal and of judicial review (see s. 108 ff. of the Prison Act). However, everyday `nasty little tricks' are usually not subject to judicial control. In this sphere it may be feared (not without reason, see Der Spiegel, 21 September 1992, pp. 99 ff.) that the traditional forms of discipline used by the officers who were taken over from the GDR will continue to be applied. The creation of a climate supportive of resocialization will require in the first instance a `resocializing of the resocializers', that is, the comprehensive education of prison personnel.

Prospects for Prison Reform in East and West

Although enormous sums of money are being transferred to the new federal states as part of the process of German unification, the prison system is likely to continue to be regarded as of secondary importance. As a first priority, improvements regarded as necessary on security grounds are proving the easiest to implement, whilst the establishment of treatment or education programmes is regarded as being less important. Nevertheless, even before unification, plans were being made for essential physical restructuring which, by increasing the size of the existing cells from 3.8 to 5 sq. m, would lead to a reduction in the number of prison places from 31,232 (at 20 March 1990) to 23,479 places. (In the meantime prison capacity has been reduced by half (see Table 1), in many cases by cutting the number of persons housed in communal cells, e.g. from four to three or two). A survey of the prisons in the old federal states showed that, in 1980, the minimum size of cells was 7 sq. m (the average 8-10 sq. m, see the overview in Schmidt 1986: 121 ff.). As in times of overcrowding several prisoners are housed in such cells (something which the courts in some instances have held to be contrary to the Prison Act - see the references in Calliess and Muller-Dietz 1991, n. 1 to para. 144; Huchting and Schumann 1990, in Alternativkommentar zum Strafvollzugsgesetz, n. 3 f. to s. 144), it would be desirable to require that a cell should provide 10-12 sq. m per prisoner. In this respect, the proposed space per prisoner in the new federal states must be seen as quite inadequate and incompatible with s. 144 of the Prison Act. In future the communal cells which earlier were used widely in the GDR must be converted to single accommodation in order to meet the requirements of s. 18(1) of the Prison Act - a standard which unfortunately the old federal states with an average of 42 per cent of their prisoners in communal cells (on 31 March 1993, see above; mostly two prisoners but on occasion also three in a cell) have also not met (see Dunkel 1992a: 19 ff.)

In 1993 it was not clear which prisons in the new federal states could be converted and which would have to be closed completely. Nevertheless, in 1990 an internal working document spoke of a total capacity of 16,000 places (see Ministerium des Inneren 1990). This would amount to an imprisonment rate of approximately 100 per 100,000 of population, if the prisons were used to full capacity. At 31 March 1993, the imprisonment rate in the old federal states was 92 per 100,000 population. (In 1991 it was as low as 75, see Dunkel 1992a: 12). Evidently there will be significant overcapacity in the East and in the absence of penal alternatives (see, in relation to the inadequate development of social services and independent probation services, Dunkel 1993a) desperate sentencing judges will be tempted to use prison as an `emergency' measure. A rational penal policy in the new federal states should concentrate in the first instance on a drastic reduction in the number of prison places. The lowest rate of imprisonment in any of the old federal states, 53 per 100,000 population in Schleswig-Holstein, is still significantly higher than the overall average of the new federal states (35 per 100,000, see Personnel and Rates of Imprisonment in the East' above). Even if, to be realistic, one must reckon on an increase in the rate of imprisonment in the new federal states, a projection of a rate of no more than 60 per 100,000 on a specific day would be an acceptable penal policy. Therefore, the new federal states should not provide more than 8-9,000 prison places (instead of the 16,000 originally envisaged, now reduced to 10,874, see Table 1). In a prison system which has been quantitatively reduced in this way, it will be possible to introduce reforms which are not to be had without some expense. These relate particularly to the appointment of professionals (psychologists, social workers, teachers) described in Personnel and Rates of Imprisonment in the East' above, as well as to the development of educational and professional training opportunities for all prisoners. The danger of inequality between what can be offered to prisoners in the West and in the East can be avoided most effectively by keeping down the number of prisoners in the new federal states.

Quite independently of the financial situation, reform measures which cost little or nothing should be implemented in the new federal states. They relate to the Angleichungsgrundsatz of s. 3(1) of the Prison Act (often called the concept of normalization, see Lesting 1988) and can have a significant impact on how prisoners experience imprisonment. A strengthening of the co-responsibility of prisoners, the integration of voluntary advisers and citizens from outside the institution into the rehabilitative endeavours of the institution, increased opening of the prison by means of more liberal provision for visits including unsupervised longer visits (for example conjugal visits along the lines adopted in Bruchsal), and the increased use of relaxation of the prison regime and furloughs are key concepts in this regard. The provision of telephone boxes in prisons, the granting of permission to individual prisoners to listen to the radio and watch television programmes of their choice, and other measures designed to increase prisoners' access to information and opportunities to communicate with others are relatively inexpensive and make explicit the social (welfare; sozialstaatliche) aspects of the sentence of imprisonment.

The success of genuine prison reform in the new federal states depends primarily on whether the prison officers can be persuaded of the value of a treatment-orientated prison system, that is, a prison system which offers prisoners opportunities for self-development (Muller-Dietz 1992: 31). Given their background of military hierarchy and discipline, the officers taken over from the former GDR are likely to have difficulties in adjusting (see in this regard Arnold 1990: 327), but the prison officers in the old federal states had to undergo the same process of relearning and still find it difficult to take the task of resocialization seriously and to regard the aspects of security and order as of lesser importance. The `atmosphere' of an institution depends on its leadership. There are many examples to show that a prison can be run well even in an obsolete building.

The positive aspects of the GDR prison system which were lost in unification, such as (relatively) better rewards for work and the inclusion of pensions (see introductory section), should remain an admonition to the prison system not to forget the task which it has been set in the Prison Act by the Sozialstaat (social welfare state). Given the incomplete nature of prison reform in Germany as a whole, the ideals and experiences of citizens' movements in the former GDR should also be taken into account (Arnold 1990: 328).

As far as the difficult topic of remuneration for work is concerned, experiments, such as those which are currently being considered by the Ministry of Justice in Hesse, are required (see the report in the ZfStrVo 1992: 372 f.). Prisoners on work release (Freiganger) are already being paid the full wage prescribed for free labour, and then have to make a contribution towards the cost of their imprisonment to the institution. It should be considered whether this procedure could not be applied `intramurally', if productive operations in the prison were to be put under the control of a limited company or charitable foundation created for the purpose, which could then employ prisoners as a form of `outside' work.

Summary

The article describes the development of the prison system in East Germany, the former GDR. The prison administration in Germany is decentralized, i.e. the five new federal states (Brandenburg, Mecklenburg-Vorpommern, Saxony, Saxe-Anhalt, and Thuringia) are responsible for establishing a new structure concerning prison staff, buildings, and regimes. They have been supported by the old federal states who sent their staff temporarily (or for permanent posts) to their `partner' states. But this was possible only with respect to high-ranking posts. The `normal' prison officers had to be taken over from the former GDR prison service, which was strongly influenced by the Ministry of the Interior and militaristic hierarchies. Most former prison governors had to be dismissed because they worked together with the ministry of state security (`Stasi').

This kind of transfer from West to East Germany led to a transfer of different prison regimes (`styles') based on the different prison regimes in the old federal states. Figures which show large variations between the old and new federal states relating to the amount of prisoners in open prisons, prison furloughs, day leaves, disciplinary measures etc. are reported. Furthermore it is difficult to implement the West German approach of `Sozialstaat' (social welfare) and the treatment philosophy of the Prison Act of 1977 as the prison staff of the former GDR is not prepared for it. The main concern of East German prison authorities is security issues, rather than improvements in facilities for rehabilitation.

Prison conditions in East Germany in general are still much worse than in the old federal states. So, for example, nearly twice as many prisoners are held in communal cells, which contradicts the rules of the Prison Act of 1977. Prospects for prison reform should be seen in the completion of the reform proposals of the seventies, e.g. a reward for prison work equal to the reward of free labour, to include prisoners into the pension system, to extend open facilities and relaxations like prison furloughs, to attempt to achieve more equal treatment (in relation to actual variations in prison regimes) and improve living conditions of prisoners in the sense of normalization, etc. Prison reform is not only a problem for the new federal states. The prison system in the old federal states needs improvement, too.

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Author:Dunkel, Frieder
Publication:British Journal of Criminology
Date:Jan 1, 1995
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