The outrage against demands to orientate criminal law towards the „common sense of the people“ or against criticism of judgements on the grounds that they are not compatible with this „common sense of the people“ is usually great. This outrage is also justified insofar as it warns against a legislative relapse into the National Socialist era, when Section 2 (1) of the German Criminal Code still read: „Anyone who commits an offence which the law declares to be punishable or which deserves punishment according to the basic idea of a criminal law and according to common public opinion shall be punished.“ Regardless of what content the National Socialists had interpreted into the term „healthy popular sentiment“ and how they had used and misused the term in public discourse, the use of these terms can also be rejected in principle with regard to their over-generalisation or lack of differentiation (what is „healthy“ and who is the „people“?) and the associated suitability for misuse. The indignation is also justified insofar as it warns against imposing harsher punishments in response to public sentiment fuelled by the media.
In some respects, however, this indignation falls short. It falls short when it suggests that punishment is based on anything other than actual or presumed feelings. It falls short when it suggests that the criminal justice system finds the most sensible solutions for dealing with criminal offences, just as medicine finds the most sensible solutions for diseases. It falls short when it suggests that the greater involvement of members of our society in dealing with punishment and conflict would inevitably result in a harsher and more inhumane criminal justice system.
The fact that the state punishes, what is punished and how it is punished is basically not based on what experts consider to be sensible in dealing with and preventing injuries, damage and conflicts. In a democracy, it is primarily based on the will of the people. This will, and the feelings on which it is based, are in turn very much dependent on information and knowledge. When it comes to crime, however, most people only receive the mass media information that a (serious) criminal offence has been committed, which triggers interest, fear and anger. The solution to the problem, which simultaneously satisfies anger and calms fear, is to punish the perpetrator and send him/her to prison. In this way, justice has been done to the victim and there he/she is treated in this information chain in such a way that he/she is no longer dangerous upon release. The citizen, who has to deal with many other things and issues and has no contact with crime themselves, cannot know much more. In this respect, our criminal law largely corresponds to the perception of the majority of our society, with the exception of particularly sensational offences, which have not been punished severely enough for some, and with the exception of some destructive people, who cannot be punished severely enough anyway.
But is this basic feeling also „healthy“ in the sense of natural, human, unadulterated? In the absence of personal involvement, it can only be on the basis of all available findings and knowledge. In relation to punishment, this would mean that the public would need to know the extent to which our criminal law actually increases safety, helps the injured parties, re-socialises offenders, reduces and prevents harm and conflict. This would require experts to communicate and implement all of this. To some extent, within the framework conditions they are given, these are certainly the representatives of the judiciary. To a not inconsiderable extent, however, the judiciary limits itself (even against its better judgement?) to the mere assertion that it can achieve all the sensible and positive things. And this claim can hardly be verified.
Criminal justice, however, must not be a world in itself. A world behind robes, in a thicket of laws impenetrable to the uninformed, in which, behind barbed wire and walls, prison supposedly creates justice and peace. The science of criminal law must not primarily and unreflectively serve itself or political requirements and thus often fuel people’s misconceptions about what has been achieved and what can be achieved with criminal law. Instead, it must primarily serve people in their social relationships.
The more enlightened people are, the more unadulterated and „healthier“ their feelings are, and the less justified is the concern about these feelings.
On the one hand, it is therefore urgently necessary that the representatives of the judiciary do not see themselves as actors of a company whose interests they must prioritise. Instead, they must consider the interests of the people themselves. To this end, knowledge must be acquired and communicated openly. The symbolic struggle for power and victory should be reserved for football and similar sports. The transcendental ultimate justification of justice is a matter for religion. However, when it comes to real damage, injuries and conflicts, when it comes to actual human suffering and its prevention and alleviation, reason must increasingly take the place of faith.
On the other hand, „the general public“ must not only be better informed, but also more involved in dealing with criminal offences (transformative justice ). In concrete terms, this could mean, for example, that the extent of the injustice committed by one person and suffered by another is judged in a public trial, as is currently the case. This would open up a very broad framework for dealing with this injustice. This framework should then no longer be filled primarily by lawyers, but by a committee in which, for example, social workers and psychologists, but also victims, perpetrators and community members are represented. Solutions should then be sought as to the extent to which the damage can be made good (restorative justice ), how the injured party can be helped (also in dealing with a possible need for revenge), what should be done to reduce the offender’s future delinquency and to protect the community. This body would find more individualised, sensible and democratic solutions than our current criminal law can. By involving the community, the social causes that play a role in every offence alongside individual responsibility will also become socially visible and tangible. In this way, the community will also feel its responsibility more strongly and will not be able to relegate it behind bars. The state and the justice system should limit themselves to a role as a framework provider, supporter and steward of this process.
Judgements are made in the name of the people. We must not only believe that an enlightened and self-responsible society will find just and humane ways of dealing with these judgements in order to minimise the harm that people inflict on each other. Because the good in people and reason really do exist.
Therefore, when it comes to punishment, let us place more trust in sound human judgement instead of abusing or weakening it to justify our own interests.