Social structure and crime policy: The German case

Introduction

I would like to introduce this article by describing a dreadful crime that happened in 2012. In a car parking lot of a small town in the North of Germany, an 11-year-old girl was sexually abused and subsequently killed. Unsurprisingly, the media coverage was instantly enormous and the police came under heavy public pressure. Only three days later the police arrested a 17-year-old male suspect to interrogate him and declared that they probably had captured the culprit. This declaration was made despite the fact that the questioning by the police was still in progress and that there was neither unequivocal evidence nor a confession. The police officers had taken the suspect in handcuffs from his parents’ house to the police station, where he was questioned for more than four hours up to midnight.

On the suggestion of a Facebook user, around 50 persons gathered to form a flash mob outside the police station, threatening to storm the place and to capture the accused and to kill him. Officials spoke of a lynch mob. After three days of detention, the suspect had to be released as the suspicion could not be corroborated.

I have dwelt on this case because it allows me to draw striking parallels to a similar incident in England that Zygmunt Bauman used as a theoretical metaphor for his sociological analysis, In Search of Politics (1999). Bauman starts his analysis with reference to comments in the newspaper, The Guardian: ‘on widely reported events triggered in three different towns of the West Country by the news that … [a paedophile] had been released from prison and returned home’ (1999: 9). Bauman continues by quoting extensive theoretical and empirical insights from the observations of a ‘reporter blessed by a sociological sixth sense’ (1999: 9). The Guardian reporter tells of a ‘protracted siege to the local police station’ and of people shouting ‘kill the bastard’. The aspects of this event are literally identical to the German event described above. This factual match of two instances that differ with respect to time, geography and nationality may be taken as a shorthand anticipation of a thesis that I want to elaborate in some more detail in the article.

There are still more parallels between the two events in England and in Germany which epitomise my argument. Later in his book, Bauman (1999) refers to several examples of attempts by politicians to ‘make crime pay’ (Beckett, 1997), notably during political campaigns. In this context it seems worth mentioning a rather infamous public statement made by the former German chancellor Gerhard Schroeder in response to a brutal sexual crime against a girl who was subsequently killed (interview with Schroeder in Bild am Sonntag, 8 July 2001). Questioning the feasibility of the social rehabilitation of sexual offenders, Schroeder stated: ‘Therefore, there can be only one solution: “lock them up, that is for ever”.’ This political statement from a high-level politician brings me still closer to the core of my argument.

In this article I want to analyse an issue that has much been discussed by a host of colleagues, politicians, journalists and others. Plenty of space in newspapers, scientific journals and political statements has been devoted to an apparent U-turn in the way societies deal with their ‘criminals’ and ‘deviants’. This discussion began during the last decades of the last century and continues to the present. I present my ideas in five steps.

Two types of exceptionalism

My point is to discuss whether a widely held belief in what I like to call ‘German exceptionalism’ is valid and can withstand empirical scrutiny. My central contention is based on the assertion that perspectives that developed from the outside about German penal policy can be boiled down to an assumption of a reversed ‘exceptionalism’.

To explain what I mean by ‘reversed exceptionalism’, I would like to make reference to a remarkable criminological controversy that goes back more than two decades – to the ‘Tenth World Congress of Criminology’ that took place in autumn 1988 at the University of Hamburg. In one of the plenary sessions the Dutch criminologist Jan J. van Dijk (1989) presented a broad and ambitious analysis of the permanent decrease of imprisonment and its substitution by measures less restrictive of freedom, which he took as further empirical evidence of Norbert Elias’s thesis of the ‘civilising process’.

As one might imagine, there were some spontaneous reactions and counter-arguments to Van Dijk’s analysis – on theoretical as well as on empirical grounds. Notably, American colleagues opposed Van Dijk’s suggestions on the basis of their knowledge about the diverging case of the USA, which at that time was well on its way to the top position in the international league table of incarceration rates. However, at that time Van Dijk could still defend his point by referring to the American situation as an exception from the rule, thereby capitalising on and profiting from an argument that can be found in other contexts and fields of comparative analysis between Europe and the USA, notably in history.

Indeed, ‘American exceptionalism’ has also become a prominent concept in the discussion about changes in criminal policy. ‘American exceptionalism’ is used in criminology in a pejorative sense and it is used to indicate the distance of a specific situation or of a specific development from its American counterpart. The notion of ‘German exceptionalism’ that I have in mind, however, is just meant to indicate the opposite.

Germany, among other countries – especially the Scandinavian nations – is widely considered by criminologists to be an outstanding positive example that is contrasted with the exceptional punitiveness in which the USA has had a vanguard role.

In an article about ‘The macho penal economy’, Downes (2001) expresses some doubts about the common rejection of the leading role of the USA with respect to penal policy. ‘The cliché that what happened in California yesterday is happening in the rest of America today, and will happen in Europe tomorrow, cannot be lightly dismissed’ (2001: 62).

The ‘punitive turn’ in criminal policy

What has become widely known as the ‘punitive turn’ is denied by only a few experts, at least so far as the USA and the UK are concerned. What can be observed about English-speaking criminology is that there appears to be quite a host of voices and studies which take it as a given fact that contemporary criminal law has deviated from its traditional path of mitigating and moderating the force and harshness of punishment – a process which has been characterised as humanisation and rationalisation in more philosophical terms, as a plurality of so-called ‘de’- processes: decriminalisation, depenalisation, de-institutionalisation.

Some revealing references may be helpful for the discussion. That which comes to mind first and foremost is, of course, David Garland and his study The Culture of Control (2001), which triggered considerable comparative research. There were, however, other authors who had previously identified this trend in criminal policy. The earliest source I have found that deals with such penal developments and processes is a published lecture by Stuart Hall about ‘Drifting into a law and order society’ which he gave on the Cobden Trust Human Rights Day in December 1979 (Hall, 1980). It was one year after the publication of Policing the Crisis (Hall et al., 1978) in which Hall and his colleagues explored the embeddedness of crime and penal policy matters in the wider social, economic, and political aspects and structures of society, thus following a line of analysis initiated several years earlier by the seminal publication of The New Criminology by Ian Taylor and colleagues (1973).

Other authors who took a similar perspective were the American criminologists John Irwin and James Austin, who published It’s about Time: America’s Imprisonment Binge, taking a metaphorical expression beyond the conceptual boundaries of criminology in 1994. In 1993, the well-known Norwegian criminologist Nils Christie published his famous book Crime as Industry – with the subtitle Towards Gulag – Western Style?. ¹ In Poor Discipline. Parole and the Social Control of the Underclass, 1890–1990, Jonathan Simon (1993) retraced in great detail the onset and the slow but steady decay of a key strategic institution of welfarist penal law during one whole century. In another book published a few years later, Simon coined the now almost colloquial title phrase of Governing through Crime (2007).

However, having similar points of view, the forerunners of Garland’s study almost wholly restricted their argument to the imprisonment aspect of the penal law. They focused especially on the prison population rate in the USA which is, as mentioned already, the highest in the world.

The outside view on Germany’s criminal policy

I now reflect critically on what is to me a somewhat strange, even bizarre understanding that I have repeatedly found in English-language criminology when it takes a comparative look at German penal policy.

Garland’s central thesis created some unease for two main reasons: first, Garland did not restrict his analysis to the USA, but extended it to the UK and, in a more cautious and defensive way, also to other ‘late-modern’ societies. Second, his assumption that other modern countries are also affected by his findings is not primarily based on empirical evidence, though some are, but is rather inferred and deduced from theoretical reflection and arguments.

Garland’s suggestions therefore could not be easily dismissed by the complacent reference to the above-mentioned American exceptionalism but they would require and invite further reflection and empirical information. Thus, some authors began to search for countries that seemed less affected or even completely unaffected by the forces that Garland had identified with respect to penal policy.

Germany seemed and seems to play a prominent role in this endeavour. In the discussions about the transferability of punitive findings in the USA and UK, Germany is awarded – together with Scandinavia – a kind of first-class, if not ‘utopian’, ² exceptional place as being immune from punitive tendencies. Garland himself mentioned ‘Scandinavian nations and Germany’ as ‘less inclined to populist, majoritarian politics’ (2004: 180) in his comment on a first round of discussion of his study. In his Penal Populism (2007) John Pratt also counts Germany among the countries unaffected by punitive tendencies. The most definite and bold but not at all well-informed statement of this sort I have found is in Michael Tonry’s well-known collection of papers (2007). In an article that had already been published in the German Law Journal in 2004, Tonry set the tone with the title: ‘Why aren’t German penal policies harsher and imprisonment rates higher?’. However, the incarceration statistics show a diametrically opposite picture: according to the official statistics, the German incarceration rate rose between 1992 and 2005 by more than 36.6 per cent.

A further statement in this vein may be in order. In a passionate plea to moderate penal policy, Ian Loader describes Germany as having a ‘relatively benign penal culture’ (2010: 358) and ‘a relatively mild penal culture in the shadow of its dark past’ (2010: 359). ³ Subsequent to Loader’s reference to the German situation, I had an email exchange with him, in which I explained my different view of Germany’s penal policy. In his friendly reply he frankly told me that he had ‘relied on what has become something of a “received wisdom outside of Germany”’ – adding the suggestion to write an article in a British journal on it. Instead, I would like to use this occasion to present some evidence to contradict what appears to me to be the flawed image of the German situation which exists outside of the country.

The German situation – a native’s view

Trying to explain the German situation from a native’s point of view requires some effort to distil the relevant literature and evidence. I will try to present the essence of my research results which, indeed, further demonstrate that Germany has also become a victim of a radical change in its penal policy.

This view is not really shared by most German criminologists (Klimke et al., 2011). The distancing from and rejection of Garland’s thesis and its relevance to Germany, which German colleagues adopted (and still adopt), revealed itself in three reviews of Garland’s book by prominent German criminologists when it first appeared (Sack, 2008). The book was treated implicitly as well as explicitly as a kind of report about quite another country – and continent. Seven years later, however, when Garland’s book was published in German, an outright contrast to the three reviews could be found in the introduction to the translation by two non-criminologists. Two eminent German scholars, the Frankfurt professor of criminal law, Klaus Günther, and the sociologist and current director of the famous Frankfurt Institute for Social Research, Axel Honneth, summarised their evidence and conclusion without reservation: ‘There are many reasons to believe that Garland’s diagnosis holds true also here’ (Günther and Honneth, 2008: 11, author’s translation).

While I am well aware of the ongoing discussion about methodological and conceptual problems with regards to the reliability and validity of the indicators of punitiveness, I restrict myself to the following topics, thereby not at all exhausting, the ‘… twelve indices of change …’ on which Garland’s study is based (Garland, 2001: 20).

I start with some general remarks about the development of the German criminal policy, relying on my own observations and research and some expert knowledge. These data will be followed by some evidence about the policy change of the political class and an exploration of some details and specifics of penal legislation. Finally, several quantitative aspects of the transformation of the German criminal policy will be addressed.

I start my remarks with an observation which cannot be denied by any – not even by a German – observer. They demonstrate a general shift of German penal policy from a liberal to a punitive path. First, whereas up to the 1980s there was a discussion in Germany about the processes of ‘de-criminalisation’ and ‘de-penalisation’ for some high-volume petty crimes, such as shoplifting and failing to pay bus or train fares, today no German politician or civil servant would dare to propose such changes to the criminal law. To quote a law professor from the University of Hagen in his most recent Einführung in die moderne Strafrechtsgeschichte: ‘“Decriminalisation” was a key concept in penal policy around 1970. However someone who would propagate a similar strategy today would be considered naïve (weltfremd)’ (Vormbaum, 2009: 276, author’s translation). This means – to borrow a conceptual distinction from political science – that crime and penal policy in Germany is no longer a ‘positional issue’ that is heavily controversial between the political parties. Instead, crime and penal policy have now become ‘valence issues’ which do not allow considerable latitude for political manoeuvres. ⁴

Perhaps most significant for the political agenda and arena, notably for English colleagues, is the way in which the first ‘German report on security’ which appeared in 2001 was couched. Commissioned by the first red-green government of chancellor Schroeder, the report, which was introduced by the Federal Minister of Justice and by the Minister of the Interior, stressed the following guiding principle: ‘Entschlossen gegen Kriminalität und entschlossen gegen ihre Ursachen’ ⁵ (Bundesministerium des Innern, 2001: XXIX). This slogan by two political top actors is apparently the literal translation of the famous New Labour message of the Blair period: ‘tough on crime and tough on the causes of crime’. Germany’s fate, however, has been that of the UK. The first part of the principle – tough on crime – was strictly followed; the second part was not. It was rather made worse in so far as the reduction of social welfare and the increase of poverty contributes to crime – as one knows, ‘received’ wisdom in criminology.

To what extent the proliferation of penal policy measures has become an important part of the political agenda in Germany can most convincingly be demonstrated by analysing the results of the election for the state of Hamburg in 2001. A one-issue political party, which was founded just one year before the election by the former judge, Ronald B. Schill, known for his harsh sentencing practice as ‘judge merciless’, managed to get 19.4 per cent of votes. During the election campaign this party pleaded for the castration of sexual offenders and promised a 50 per cent reduction of violent crime within the first hundred days of government. As a result of this party’s success, the coalition between the social democratic and the green party was kicked out of office and this party together with the conservatives came into power. The opportunistic and populist ‘lesson’ of this election campaign and outcome has been noted by every political party since then. ‘Populism’ as a kind of key indicator of punitive tendencies in criminal policy has become part and parcel of German party politics.

Turning to the field of penal legislation, my central point concerns the increasing quantity and the accelerated pace of penal change and amendments to the criminal law in contemporary Germany – a piece of evidence which to my knowledge is more or less missing in the relevant literature. This is true in any case for my own country, but, as far as I have found, it holds also for most of the non-German countries on this topic. The facts on this issue are easily revealed by exploring some statistics and doing some counting.

In Germany there was little legislative activity in the criminal justice field in the decade between 1956 and 1965: altogether there were eight instances of penal legislation of different kinds. During the next decade, that of the so-called ‘liberal period’ of German criminal policy that lasted until the mid 1970s, there were 29 legal changes. What has followed since the anti-terrorist legislation in the late 1970s has been an accelerating stream of penal amendments and reform bills: 18 between 1976 and 1985, 38 in the next decade, and 52 in the decade between 1996 and 2005 (Vormbaum and Welp, 2004).

These recent developments in penal legislation have been accompanied by a dramatic change in the mode and process of legislative activities, in the relevant actors and in the occasions and ‘reasons’ of penal change. In this legislative context ‘penal populism’ is an often-heard reproach to what is going on in this political arena.

There is a most remarkable implication in the growing speed and quantity of penal legislation. The existing principles of proper and rational legislation in a constitutional state are more and more often neglected or only rhetorically observed. There is the constitutionally required principle of proportionality which has to be followed by the legislative bodies. A newly imposed political measure has to be demonstrably necessary as well as appropriate to achieve the intended end. The growing rapidity with which penal legislation is adopted is, however, detrimental to the compliance with these legislative rules. There have been several instances of a type of ‘instant’ or occasional legislation, adopted almost overnight, notably with respect to penal sanctions against sexual violations. This is typical of what has been called ‘symbolic’, non-instrumental legislation, the opposite of what is considered to be appropriate for a state governed by the rule of law.

The quantity of legislation alone, of course, does not reveal the substantive direction of its movement. To deal with this aspect of my argument I refer to the observations and statements of several criminal theorists who have dealt with this aspect of my thesis. To begin with, a criminal law professor of the University of Frankfurt and a former vice-president of the German Constitutional Court, W. Hassemer, dealt with this question just before Garland’s book was published. In a remarkable talk in late 2000 Hassemer spoke of a new ‘Straflust’ – desire to punish – which he characterised as follows: ‘Eher zurückschlagen als nachfragen, eher strafen als heilen oder gar verzeihen’ (2001: 459). ⁶ This, obviously, reminds the reader of a very similar slogan, that of John Major, a former British Prime Minister, and his suggestion: ‘to condemn more and to understand less’.

Hassemer summarised the evolution of the penal law as follows:

Reform of the criminal law for two decades has been ‘a one-eyed venture’. This reform deals with nothing else than tightening up the criminal law – in substantive criminal law, new crimes, increased punishments and reduced requirements for convictions, in procedural criminal law, new and harsher methods of investigation. (2001: 477, author’s translation)

A more detailed analysis of this development in penal law ‘reform’ can also be found in a study published a year earlier by Hassemer’s Frankfurt colleague Naucke (1999).

For a more detailed and coherent reconstruction of the development of the German criminal law I would refer the reader to a recent history of modern criminal law by Thomas Vormbaum (2011) and to a collection of articles, written by several criminal law professors about developments since the adoption of the German Criminal Code in 1871. The authors of this collection divide the post-war era into three parts, with a rupture in the mid 1970s when a ‘liberal’ development was reversed and the law became more restrictive. It seems to be no accident that this rupture coincides with what is usually taken as the turning point in US criminal policy – the middle of the seventies of the previous century – although this observation is only made with the benefit of hindsight.

To substantiate my last point, I utilise some statistics about the recourse to different modes of deprivation of freedom by imprisonment, preventive and police detention and psychiatric institutions. The accounts expressed in several places about the German prison population as it actually developed are not true. It increased, as mentioned earlier, between 1992 and 2005, by 36.6 per cent (Walmesley, various dates), although it decreased somewhat thereafter. More telling is the growing recourse to psychiatric centres of detention for dangerous offenders. This measure of the criminal law, considered by experts as ‘all along the most controversial sanction of the penal law’ (Kinzig, 2010: 49), was introduced by the Nazis in 1933, who brutally misused it. While it was somewhat revised and its worst aspects were repealed, this measure was retained after the war in the criminal law of the Federal Republic.

Subsequently, in the decade from 1998 to 2008 the scope of this measure was increased five times (Vormbaum, 2011: 269). Eventually it was held by the European Court of Human Rights to infringe fundamental human rights principles, inter alia because it violates the principle of non-retroactivity by requiring the imposition of such detention on an offender for longer than was possible at the time that he was sentenced (M v Germany, ECtHR judgment of 18 December 2009, file number 19359/04). The increasing number of detention orders for dangerous offenders reflects the reality of the criminal law very well: they dropped from a high of 268 in 1968 to 110 two years later, and reached a low of 27 in 1988. Since then they have increased again. The number of inmates in the detention centres has tripled from its low of 176 in 1995 to 536 in 2009 (Kinzig, 2010: 52). ⁷

In closing this section, I want to highlight the work of two scholars who have dealt extensively with the topic of this article and who offer English-speaking readers the opportunity to access their thoughts in proper English language. First, Peter-Alexis Albrecht, who held a chair of criminology and criminal law at the University of Frankfurt for years, has published a ‘scientific-biographic account’ which tries to ‘capture the erosions of the rule of law in criminal law concretely and analytically’ (2011: V). The subtitle of the English shortened version of his book carries the central message of his study: The Rule of Law: History of a Free Fall. The book puts together a host of research and publications through decades of his scholarly life and experience; it is pessimistic in its analytical results and uncompromising in its normative claims.

The second author who deserves attention is the late Trutz von Trotha, a sociologist who was probably the most ambitious and brilliant scholar on the theoretical interpretation of the structural changes of social control in post-modern societies. His scholarly work is wide in scope and covers criminological, sociological and anthropological subjects. His conceptual orientation is based on a theory of power and violence in the Hobbesian tradition as it was elaborated by his academic teacher at the University of Freiburg, H. Popitz. The steady erosion of the never fully attained control and domestication of violence in and between nations is the starting point and the central thesis of his analysis. This development results in an assumed predicament which Von Trotha empirically infers from his anthropological field studies in several third world countries (in Togo and Papua-New Guinea) as well as from relevant structural changes in western countries.

Since the middle of the 1990s, Von Trotha elaborated step by step his central thesis about the decline of the state monopoly of violence and its gradual appropriation by various societal processes and actors. The most empirically and theoretically detailed explanation of the procedure, as well as the results of his research, can be found in a chapter of Ordnungsformen der Gewalt (Von Trotha, 2002). ⁸ Here Von Trotha develops a typology of the regulation of violence as patterns of the relationship between state and society. The typology culminates in an analytic description of the successor to the western model of domesticated violence, which is the state governed by the rule of law as developed in Europe during the last two or three centuries. Von Trotha calls this last type the ‘post-welfare type’ of violence regulation ‘Präventive Sicherheitsordnung (PSO)’. ⁹ A shorter and more concise version of this typology of order can be found in an article that appeared one year later, the title of which reveals its most important single components: ‘Reorganisation oder Ende der Rechtsstaatlichkeit? Risikostrafrecht, Kultur der Viktimisierung, Wiederkehr der Rache, Globaler Kleinkrieg, Präventive Sicherheitsordnung’ (Rösel and Von Trotha, 2003). ¹⁰ The title indicates a considerable correspondence in the structural changes on which both Garland and Von Trotha base their analyses. They have been identified by both authors independently of each other. In fact, Von Trotha published a first outline of his thesis a couple of years before Garland’s Culture of Control appeared (Von Trotha, 1995).

There is no room here to exploit the full richness of Trotha’s empirical findings and theoretical reflections. However, I want to refer the non-German-speaking reader to a bilingual collection of articles resulting from an international conference that Trutz von Trotha, together with a political scientist, Jakob Rösel, organised about ‘The Reorganisation or the End of Constitutional Liberties?’ (Rösel and Von Trotha, 2005). This truly comparative publication fully meets the criterion of comparativeness which several authors in our field have required in the wake of Garland’s ‘Culture of Control’. Von Trotha’s work compares favourably to most other attempts at comparative research in the area. Moreover, it is theoretically more ambitious and convincing than Garland’s study, and because of its ethnological perspective it is less parochial. This does not mean, however, that there is an empirical lack with regard to the situation in western countries, nor, of course, to Germany. On the contrary: the above-mentioned research of Hassemer, Naucke and others is fully included in his view, as is the discussion about the so-called ‘Feindstrafrecht’ of the German law professor G. Jakobs (2000). Von Trotha’s view on German criminal policy is definitely the opposite of what I have outlined above according to the ‘received wisdom’ of English-speaking criminology. It stands also in vivid contrast to the view which is conveyed about German penal policy in several articles by the German-American author J.J. Savelsberg (2002), who probably has – unwillingly or not – contributed to the flawed representation of the German situation. ¹¹

The social structural forces behind the change in the German criminal law: Some preliminary reflections

The last step in my reflections is devoted to a central topic in the discussion about the punitive turn. What drives the criminal law in a direction that has led to its departure from its historical path? This question has too many facets to be dealt with in a short article. I have to restrict myself to some preliminary remarks, although some preparatory work exists that can be built on. This is, of course, the case with Garland’s seminal research, which locates the roots of the identified change in criminal law as mainly outside the proper realm of crime and criminal policy. The direction taken by his reasoning – or so it seems despite his alleged ‘cultural bias’ – may be hinted at by pointing to the longest single quotation he includes in his argument: it is the most famous passage of the Communist Manifesto of Marx and Engels of 1848 (Garland, 2001: 79), part of which Marshal Berman (1982) has chosen as title for his fascinating study All That Is Solid Melts Into Air on 19th-century cultural life in Europe.

My own academic teacher in sociology, René König, who spent several years in Switzerland in exile from Nazi Germany between 1937 and 1949, characterised German society as struck by ‘social disorganization’ which would create ‘a loud and louder call for law and order’ (1999 [1980]: 198), thereby referring to another concept from a different field – at a time when the topic was not yet on the criminological agenda. König’s observation corresponds in time and substance to that of Hall whom I mentioned earlier.

Garland’s assumption with respect to the applicability of his results about the development of criminal policy in the USA and UK to other countries is based only to a small extent on empirical grounds. His main argument, however, refers to the structural changes of society which have affected almost all western countries and which, according to his reasoning, will have the same impact on their penal ‘culture’. It is beyond any doubt that Germany has not only started on the same path of structural changes as those of the neoliberal forerunners of the USA and the UK but has become meanwhile a very docile follower. The implications are, therefore, to be seen readily in the field of penal policy.

It has long been taken for granted that penal policy is not isolated from the general context of the society of which it is a part. One of the great German personalities in penal science and policy of the last century, Franz von Liszt, put this relation in the famous slogan: ‘social policy is the best criminal policy’. The penal law historian, Vormbaum, cynically reversed this ‘wisdom’ to pinpoint the present state of the connection: ‘criminal policy as the best social policy’ (2004: 486). Vormbaum has characterised this ‘insight’, which he borrowed from a colleague who has done excellent research on the history of ‘punishment and its alternatives’ (Kubink, 2002), as a kind of ‘gibe’ which, however, ‘distorts’ the real truth of the facts (2004: 486). Whether this accepted connection between social and criminal policy can be considered as ‘a piece of a jigsaw’ that will further contribute to the rediscovery of the seminal work by G. Rusche and O. Kirchheimer Punishment and Social Structure remains to be seen. Its new ‘Transaction’ edition in 2003, which was forcefully introduced by D. Melossi who called for a ‘more “sober” evaluation’ of the work – against the “high” on “culture” that has deeply affected the social scientific academia in the last quarter of a century’ (Melossi, 2003: IX), ¹² has been reprinted for a fifth time in 2009.

Epilogue to German criminologists – commitment to what?

At the end of Zedner’s extensive review of Garland’s Culture of Control, which carries the somewhat dramatic warning: ‘Dangers of dystopia’, the author complains about the ‘nihilistic game’ she claims to have identified in Garland’s analysis as well as his ‘abandonment of political commitment and of normative theorizing’ (2002: 364). She qualifies her request for ‘the responsibility of the social commentator for the society about which he passes judgment’ by admitting that ‘it should not be overplayed’ (2002: 364). In regard to the vast majority of German colleagues – exceptions exist, of course – I would argue that they overdo their abstention from analysis, clinging to a normative pathos of a kind which a famous German writer ¹³ described as follows: ‘concluding that cannot be what must not be’.