跨学科历史杂志, XLVI:4 (春天, 2016), 517–542.
Wayne Geerling, Gary B. Magee, and Russell Smyth
Sentencing, Judicial Discretion, and Political
Prisoners in Pre-War Nazi Germany Like most dic-
tatorships, Nazi Germany did not draw distinctions between no-
tions of national and regime security. For all intents and purposes,
they were one in the same. 因此, according to the Nazis, the fate
of the German people was irrevocably linked to that of the Third
Reich; if National Socialism were to collapse, so too would—and
should—Germany. As a corollary, those who opposed National
Socialism were viewed equally as opponents of the German peo-
普莱. By drawing such a tight link between the fortunes of party
and state, the Nazi regime was able to provide not only for itself
but also for the nation as a whole, a rationale for the ruthless sup-
pression of its enemies. The logic of this cold, Social Darwinist
calculus of national survival, 而且, dictated that all parts of
German society should reflect the political will and ideology of
the Nazi state.1
Wayne Geerling is Senior Lecturer, Dept. of Economics, Pennsylvania State University. 他是
the author of, with Gary B. Magee and Robert Brooks, “Cooperation, Defection and Resis-
tance in Nazi Germany,” Explorations in Economic History (四月 2015), 可以在 http 上找到://
www.sciencedirect.com/science/article/pii/S0014498315000261; with Gary B. Magee and
Robert Brooks, “Faces of Opposition: Juvenile Resistance, High Treason and the People’s
Court in Nazi Germany,” Journal of Interdisciplinary History, XLIV (2013), 209–234.
Gary B. Magee is Professor of Economics and Deputy Dean (研究) in the Faculty of
Business and Economics, Monash University, 澳大利亚. 他是, with Andrew S.
汤普森, Empire and Globalisation: Networks of People, Goods and Capital in the British World,
c.1850–1914 (纽约, 2010); Productivity and Performance in the Paper Industry: Labour, 首都,
and Technology in Britain and America, 1860–1914 (纽约, 1997); Knowledge Generation:
Technological Change and Economic Growth in Colonial Australia (墨尔本, 2000).
Russell Smyth is Professor of Economics, Monash University, 澳大利亚. He is the author
的, with Mita Bhattacharya, “The Determinants of Judicial Influence and Prestige: Some Em-
pirical Evidence from the High Court of Australia,》 法律研究杂志, XXX (2001), 223–
252; with Vinod Mishra, “The Transmission of Legal Precedent across the Australian State
Supreme Courts over the Twentieth Century,“ 法律 & 社会评论, XLV (2011), 139–170.
The authors thank David Addison, Friederike Bauer, Sisira Jayasuriya, Steffen Jöris, Chau
阮, Son Nguyen, Michael Smiddy, and our referees for their valuable comments.
© 2016 by the Massachusetts Institute of Technology and The Journal of Interdisciplinary
历史, 公司, 土井:10.1162/JINH_a_00903
For a good overview of the essence of the Nazi Weltanschauung, see Ian Kershaw, 这
1
Nazi Dictatorship: Problems and Perspectives of Interpretation (伦敦, 2000), 20–46.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
518
| G E E R L IN G , MA G E E , A N D SM Y T H
For the judiciary, the practical meaning of this injunction was
that its courtrooms should be guided first by the needs of the
national community (Volksgemeinschaft), not by legal principle.
Consistent with such a worldview, a new court, named the People’s
法庭 (Volksgerichtshof ), was established in April 1934, entrusted
with the critical task of trying the regime’s most serious political
opponents. 然而, in the eyes of the party, it was not to be just another
court but an institution that would occupy a special place in the
Nazi schema. As Karl Engert, one of the Court’s most prominent
法官, 解释了, “Just as the Wehrmacht has to safeguard the external
existence of the state, the People’s Court has a similar obligation for
inner security in collaboration with the Gestapo.” When he resigned
as president of the court in September 1942 to become Reich min-
ister for justice, Otto Georg Thierack expressed a similar sentiment
to his successor: “In no other court does it emerge so clearly that the
administration of the law . . . must be in accord with the leadership
of the state. It will be your main task to guide the judges in this
direction.” Consequently, People’s Court judges were expected to
act not just as jurists but as “political fighters in the rebirth of the
German nation.”2
不出所料, given its overtly political origin and subsequent
shameful history, the People’s Court has become symbolic of the
wanton criminality and corruption of the Third Reich. In the words
of some of its post-war assessors, it was a “court in name only,” a
“terror court,” a “blood tribunal,” or “an instrument of terror in the
enforcement of National Socialist tyranny.” Such an entity offered
scant scope for such legal niceties as judicial independence, discretion,
or even due process. Although recent scholarship drawn from detailed
archival research has rightly challenged an overly simplistic caricature
of the Court, emphasizing instead its continuities with German legal
traditions, few would contend that its judgments were impartial or
that its judges were not subservient to the wishes of the regime.3
For the legal system in Nazi Germany, see Nikolaus Wachsmann, Hitler’s Prisons: Legal
2
Terror in Nazi Germany (新天堂, 2004), 69. The quotations come from Karl Engert, “Die
Stellung und Aufgaben des Volksgerichtshofes,” Deutsches Recht, 我 (1939), 485; Hannsjoachim
Köch, In the Name of the Volk: Political Justice in Hitler’s Germany (伦敦, 1989), 127; Otto
Georg Thierack, “Aufgaben und Tätigkeit des Volksgerichtshofes,” Zeitschrift der Akademie für
Deutsches Recht, XIX–XX (1936), 856.
3 The quotations come from Bernhard Jahntz and Volker Kähne, Der Volksgerichtshof:
Darstellung der Ermittlungen der Staatsanwaltschaft bei dem Landgericht Berlin gegen ehemalige Richter
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
| 519
Such a damning evaluation of the People’s Court and Nazi-era
legal institutions in general strongly resonates with the traditional view
of authoritarian courts held by many scholars of comparative legal sys-
特姆斯. 从这个角度来看, dictatorships, ever-fearful of losing con-
trol of events or of providing their opposition with an avenue to
express their discontent, are inherently incapable of affording
meaningful judicial discretion or independence. Recent studies, 如何-
曾经, have begun to paint a more varied picture, in which some regimes,
most notably in twentieth-century Latin America and North Africa,
seemed both willing and able to provide a degree of empowerment
to their judiciary. Whether such empowerment is permitted to de-
velop depends on a host of political considerations, not least among
them are the relative importance to the state of bureaucratic effi-
ciency, institutional stability, political control, and foreign investment.4
But what is the practical meaning of such empowerment? 如何,
例如, does it manifest itself in the everyday activities of the
法院, as opposed to the politics of the system? As Rios-Figueroa
and Staton note, judges construe empowerment as, 首先, “not
und Staatsanwälte am Volksgerichtshof (柏林, 1992), 45–47; Nürnberg Military Tribunals, Trials of
War Criminals before the Nürnberg Military Trials under Control Council Law No. 10, “The Justice Case”
( 华盛顿, 1951), 三、, 19; Hinrich Rüping, “Streng, aber gerecht: Schutz der Staatssicherheit
durch den Volksgerichtshof,” Juristenzeitung, XXXIX (1984), 815–821; idem, “Sind die Urteile
des Volksgerichtshofes nichtig?” Neue Juristische Wochenschrift, XL (1985), 239. For the nuanced
picture of the early People’s Court as less revolutionary and more in line with German legal
实践, see Klaus Marxen, Das Volk und sein Gerichtshof: eine Studie zum Nationalsozialistische
Volksgerichtshof (Frankfurt am Main, 1994); Holger Schlüter, Die Urteilspraxis des nationalsozia-
listischen Volksgerichtshof (柏林, 1995); Lothar Gruchmann, Justiz im Dritten Reich 1933 bis 1940:
Verwaltung, Anpassung und Ausschaltung in der Ära Gürtner (慕尼黑, 1988); Wachsmann, Hitler’s
Prisons, 117.
For examples of the traditional view, see Neal Tate, “Why the Expansion of Judicial
4
力量?” in idem and Torbjorn Vallinder (编辑。), The Global Expansion of Judicial Power (新的
约克, 1995), 27–37; Peter Solomon, “Courts and Judges in Authoritarian Regimes,” World
政治, LX (2007), 122–145. For research that suggests some degree of judicial autonomy, 看,
例如, Anthony Pereira, 政治的 (在)正义: Political Authoritarianism and the Rule of Law in
巴西, 智利, and Argentina (Pittsburgh, 2005); Lisa Hilbink, Judges beyond Politics in Democracy
and Dictatorship: Lessons from Chile (纽约, 2007); Tom Ginsburg and Tamir Moustafa
(编辑。), Rule by Law: The Politics of Courts in Authoritarian Regimes (纽约, 2008); 对于一些
of the potential determinants of judicial autonomy, Jennifer Widner, Building the Rule of Law:
Francis Nyalali and the Road to Judicial Independence in Africa (纽约, 2001); Jodi Finkel,
Judicial Reform as Political Insurance: 阿根廷, 秘鲁, and Mexico in the 1990s (圣母,
2008); Gretchen Helmke and Frances Rosenbluth, “Regimes and the Rule of Law: Judicial
Independence in Comparative Perspective,” Annual Review of Political Science, XII (2009), 345–
366; Charles Smith and Mark Farrales, “Court Reform in Transitional States: Chile and the
菲律宾,” Journal of International Relations and Development, XIII (2010), 163–193.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
520
| G E E R L IN G , MA G E E , A N D SM Y T H
[having to] face undue external or internal pressure (as say from
hierarchical superiors) to resolve cases in particular ways.” In other
字, empowerment denotes an ability to exert some degree of
autonomy over key features of a trial, especially the processes sur-
rounding sentencing. 更具体地说, in term of setting sentences,
it stands for judges’ freedom, even if only partial, to use their own
discretion (rather than simply to impose predetermined sentences
from guidelines created by the government).5
From this understanding, it follows that careful examination
of the sentencing decisions of judges can offer rare insight into
the practical realities of judicial empowerment. Such an analysis
has the potential to be particularly revealing for major political trials
in pre-war Nazi Germany. Despite the People’s Court’s obvious
failings as a legal institution, a close reading of the historical record
shows that during the pre-war years, its presiding judges may have
operated with a significant degree of discretion in imposing sen-
时态. At first blush, this claim might invite skepticism. 毕竟,
this court was designed and established by the Nazis themselves.
But given the hope at the time that judicial outcomes would reflect
what the regime believed to be the popular will, granting some level
of flexibility to judges to move beyond legal precedent and standard
practice becomes more comprehensible.6
Julio Rios-Figueroa and Jeffrey Staton, “Unpacking the Rule of Law: A Review of
5
Judicial Independence Measures,” CELS 2009 Fourth Annual Conference on Empirical Legal
Studies Paper (四月 26, 2009), available at SSRN: http://ssrn.com/abstract=1434234 or
http://dx.doi.org/10.2139/ssrn.1434234. Three main findings emerge from the recent exten-
sive contemporary literature about the determinants of sentencing, which focuses heavily on
the impact of the Federal Sentencing Guidelines in the United States. 第一的, 虽然
Federal Sentencing Guidelines have either discouraged or prohibited the use of individual
特征, they continue to be important in explaining disparities in sentence length.
第二, the demographic and political composition of a court generally has little, or no, 影响
on disparities in sentencing, 虽然, they can affect the discretionary tools utilized by a
法官. 第三, type of offense and previous criminal history are important in explaining dis-
parities in sentence type. For an introduction to this literature, see Celesta Albonetti,
“Sentencing Under the Federal Sentencing Guidelines: Effects of Defendant Characteristics,
Guilty Pleas and Departures on Sentence Outcomes for Drug Offences, 1991–1992,” Law and
社会评论, XXI (1997), 789–822; David Mustard, “Racial, Ethnic and Gender Disparities
in Sentencing: Evidence from the US Federal Courts,” Journal of Law and Economics, XLIV
(2001), 285–314; Max Schanzenbach, “Racial and Sex Disparities in Prison Sentences: 这
Effect of District Level Judicial Demographics,》 法律研究杂志, XXXIV (2005), 57–92;
David Abrams, Marianne Bertrand, and Sendhil Mullainathan, “Do Judges Vary in Their Treatment
of Race?》 法律研究杂志, XLI (2012), 347–383.
6 Köch, In the Name of the Volk; Marxen, Das Volk.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
| 521
然而, even if such judicial leeway did exist, did it really make
any difference? 迄今为止, whether or not judicial discretion system-
atically affected the sentencing behavior of Nazi-era judges is a
question that has been largely left untouched. 的确, as Zarusky
著名的, with the exception of Thierack and Roland Freisler, 它是
most infamous presidents, the judges of the People’s Court have
attracted very little methodical scrutiny. We know, 然而, 那
the decisions of a number of People’s Court trials raised concerns
in official circles. Between April 1935 and August 1936, 为了考试-
普莱, the Ministry of Justice (Reichsjustizministerium) openly criticized
no fewer than eighteen of the court’s verdicts as too lenient. Adolf
Hitler, 也, later complained that the decisions of the People’s Court
“had not initially corresponded to his desired tough standards.” Were
these supposedly lenient sentences that had brought such high level
rebukes simply random outliers, or were they symptomatic of a
wider application of judicial discretion?7
At heart, these are, by nature, quantitative questions, 或者, 更多的
accurately, matters that can be resolved only by determining what
was normal and what was not. This article addresses these issues by
utilizing the tools of econometrics to examine in detail the sen-
tencing patterns of a sample of 1,114 individuals convicted of high
treason and treason between the start of Hitler’s rule in January
1933 and the outbreak of war in Europe in September 1939. 在
both approach and orientation, we are indebted to prior quantita-
tive analyses of the People’s Court by Marxen and Schlüter that
has laid the foundations for much of our current understanding
of trends in the Court’s verdicts. This article takes their research
to the next level by using inferential statistics to probe what lies
beneath the overall sentencing outcomes that they identified. 在
也就是说, how exactly were verdicts in the People’s Court
reached, and what role did judges actually play in the process?
By undertaking such an analysis, we are able to determine for the
first time the extent of the discretion afforded to senior Nazi-era
judges in trials involving political prisoners, as well as trace any pat-
terns in sentencing, during the pre-war period.
Jürgen Zarusky, “Mit einem Forschungsbericht für die Jahre 1974 bis 2010,” in Walter
7
瓦格纳, Der Volksgerichtshof im nationalsozialistischen Staat (慕尼黑, 2011), 1018. The quotation
comes from Gruchmann, Justiz im Dritten Reich, 965.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
522
| G E E R L IN G , MA G E E , A N D SM Y T H
In all societies,
TREASON AND HIGH TREASON IN NAZI GERMANY
high treason and treason rank as the most serious of political offenses.
High treason relates to those acts that internally undermine the
power and integrity of the state, such as an attempt on the life of
the head of state. Treason, 相比之下, concerns itself with acts
that harm the state externally, such as collusion with, or the trans-
mission of state secrets to, a foreign power. When the Nazis took
control of Germany in 1933, they began immediately to use the
courts to prosecute their political opponents. Articles 80–92 of the
Reichsstrafgesetzbuch (Federal Penal Code), first promulgated in
1871, specified three categories of high treason—(1) attacks that
threatened the head of state, (2) attempts to change or alter the
territory of the federal state, 和 (3) violations of the constitution.
The Nazis, 然而, considered these laws as antiquated, excessively
liberal and too narrow.8
On the night of February 27, 1933, the Reichstag (Germany’s
parliament) mysteriously went up in flames. The Nazis attributed
the fire to the Communists, portraying it as a sign of an imminent
armed uprising that justified on the following day the enactment
of two decrees that extended the scope of political crimes and
sanctions for high treason in Germany. 第一个, the Decree of
the President against Treason and High Treasonous Activities,
which aimed to neutralize political opponents of the state, 尤其
the Communist Party of Germany (KPD), introduced the concept of
Zersetzungshochverrat (subversive high treason)—“acts of political
subversion, which obstructed the police and army from fulfilling
their duty to protect the state.” Under Article 6, the manufacture,
分配, and storage of subversive writings were also, for the first
时间, included as acts of high treason. 文章 1 of the second decree,
the Decree of the President for the Protection of People and State,
commonly known as the Reichstag Fire Decree, extended capital
For legal histories of the People’s Court, see Edmund Lauf, Der Volksgerichtshof und sein
8
Beobachter: Bedingungen und Funktionen der Gerichtberichterstattung im Nationalsozialismus (Opladen,
1994); Marxen, Das Volk; Schlüter, Die Urteilspraxis; Isabel Richter, Hochverratsprozesse als
Herrschaftspraxis im Nationalsozialismus: Männer und Frauen vor dem Volkgerichtshof 1934–1939
(Münster, 2001); Marxen and Schlüter, Terror und “Normalität”: Urteile des nationalsozialistischen
Volksgerichtshofs 1934–1945: Eine Dokumentation (Düsseldorf, 2004); 瓦格纳, Der Volksgerichtshof;
for good overviews of criminal (和政治) justice in Nazi Germany more generally,
Ingo Müller, Furchtbare Juristen: Die unbewältigte Vergangenheit unserer Justiz (München, 1987);
Richard Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (纽约, 1996);
Wachsmann, Hitler’s Prisons.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
| 523
punishment to all high-treasonous offenses, including those that had
previously carried a maximum penalty of life imprisonment. 这
complete political ascendancy of the Nazis was further tightened
five months later by the Law against the Reestablishment of Parties
of July 14, 1933, which recognized the Nazi Party as the sole legit-
imate political party in Germany. 此后, the establishment, 或者
re-establishment, of any political party became a high-treasonous
罪行, punishable by a prison sentence of as many as ten years.9
The Reichstag fire and subsequent trial also provided the impe-
tus for the restructuring of the German judicial system. Germany’s
最高法院 (Reichsgericht), which had been responsible for cases
of high treason and treason since 1879, conducted the Reichstag fire
审判, which lasted from September to December 1933. It found
Marinus van der Lubbe, the main defendant, guilty and sentenced
him to death, but it dismissed the cases against the trial’s other four
defendants for lack of evidence. This acquittal of four defendants in
a trial that had attracted worldwide attention was an embarrassment
to the regime, particularly given that this crime was meant to serve
as proof of a grand Communist conspiracy and as the pretext for the
Reichstag Fire Decree. Hitler later described the verdict as “laugh-
able” and the judges as “senile.” Hence, on April 24, 1934, the Law
Amending Provisions of Criminal Law and Criminal Procedure cre-
ated the People’s Court to remove high treason and treason from the
domain of the Supreme Court. This law also regulated the juris-
diction of the People’s Court, the composition of its senates, 这
appointment of its members, and several of its procedural details.10
Like its predecessor in trying cases of high treason and treason,
each of the three senates of the People’s Court consisted of five
members for main trials, in which each member of the senate,
along with the presiding judge, decided on the case before them.
Unlike in the Supreme Court, 然而, only the presiding judge
and one assessor in any major trial before the People’s Court were
required to be professional judges. The other three assessors were
9 Zarusky and Hartmut Mehringer (编辑。), Erschließungsband zur Mikrofiche-Edition, Widerstand
als Hochverrat: 1933–1945: Die Verfahren gegen deutsche Reichsangehörige vor dem Reichsgericht, 民主
Volksgerichtshof und dem Reichskriegsgericht (慕尼黑, 1998); 瓦格纳, Der Volksgerichtshof. 这
quotation comes from Reichsministerium des Innern, “Die Verordnung des Reichspräsidenten
gegen Verrat am Deutschen Volke und hochverräterische Umtriebe,” Reichsgesetzblatt, 28 Feb.
1933, Teil I, 85.
10 瓦格纳, Der Volksgerichtshof.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
524
| G E E R L IN G , MA G E E , A N D SM Y T H
honorary, drawn from the Nazi Party and its ancillary organizations.
These non-jurists, who were intended to provide “political exper-
tise,” were praised in the founding law as being “closely attached
with the politically dynamic strength of the people whose popular
conception of legality they best reflect.” Hitler himself appointed
the members of the People’s Court, including its president, 为了
terms of five years. According to Wilhelm Weiß, lay member of
the People’s Court and later chief editor of the Völkischer Beobachter
(People’s Observer), the Nazi Party’s official newspaper, the purpose
of the new court was to form an institution that “portrayed an essen-
tial part of the National Socialist jurisdiction, an organic creation of
the National Socialist state, since the assessors formed a close personal
relationship with the Party which did not exist in any other German
court.”11
This same new law also regulated the series of laws that the
Nazis had passed and employed since 1933 to change the Penal
Codes in their favor. 文章 83 of the Penal Code focused on key
aspects of high treason. The death penalty was permitted for the
following crimes—(1) the establishment, or re-establishment, of an
organization conspiring to commit high treason; (2) the subversion
of police and defence forces; (3) the influencing of the masses
through writings, 记录, pictorial images, and radio broadcasts;
和 (4) the attempt to import high-treasonous writings, 记录, 或者
pictorial images. Incitement of others to commit high treason or the
conspiracy to commit high treason carried a maximum prison term
11 The quotations of Hitler come from Henry Picker, Hitler’s Tischgespräche im Führerhaupt-
quartier 1941–1942 (Bonn, 1951). Although jurisdiction over cases of high treason was trans-
ferred to the People’s Court in 1934, minor cases continued to be sent to the regional
Oberlandesgericht for trial. On the structure of the People’s Court, see Zarusky and Mehringer,
Widerstand als Hochverrat, 30–31; Reichsministerium des Innern, “Die Vierte Verordnung zur
Vereinfachung der Rechtspflege,” Reichsgesetzblatt, 13 Dec. 1944, Teil I, 339. The “political
expertise” quotation comes from idem, “Gesetz zur Änderung von Vorschriften des Srafrechts
und des Strafverfahrens,” Reichsgesetzblatt, 24 四月 1934, Teil I, 345. Wilhelm Weiβ, “Der
Volksgerichtshof des deutschen Reiches,” Deutsches Recht, V (1935), 518. Hitler appointed
judges to the People’s Court, whereas Paul von Hindenburg, president of the Reich, 制成
appointments to the Supreme Court until his death in August 1934. The original personnel
appointed to the People’s Court included twelve professional judges and twenty-one honorary
assessors or lay judges. Of the legal members, three were senate presidents (Senatspräsidenten),
including Fritz Rehn, the first president of the People’s Court; six presiding judges from a division
of a district court (Landesgerichtsdirektoren); one judge of a district court (Landesgerichtsrat); 一
judge of a local court (amtsgerichtsrat); and one director of public prosecution (Oberstaatsanwalt).
For more details, see Gruchmann, Justiz im Dritten Reich.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
| 525
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
of ten years, although the added proviso that “under certain con-
ditions a lifelong prison sentence or the death penalty could be
imposed” made the distinction between the crimes irrelevant. 在
short, the judges comprising the People’s Court had absolute dis-
cretion to determine whether those on trial for treason and high
treason deserved a death sentence.12
截至四月 1934, a solitary, all-embracing law brought all
decrees with respect to high treason and treason into line. 这
presiding judge had considerable latitude in allotting punishment;
sentencing options were elastic, with respect to both their type and
their severity. 的确, there were no specific guidelines about
sentencing. Judges were free to select any option, from time in a
normal prison (Gefängnis) at one end to various degrees of hard
劳动, loss of civil rights in a penitentiary (Zuchthaus), and capital
punishment at the farthest end. Lengths of imprisonment were also
at the discretion of the presiding judge. Significantly, the death
penalty was applicable to all crimes listed in Articles 80 到 83 的
the penal code, without recourse to appeal.13
On August 1, 1934, the first trials took place before the three
senates of the People’s Court. 十一月 1935, a fourth senate
was created to help cope with the increasing workload. In April
1936, the Law about the People’s Court and the Twenty-Fifth
Amendment to the Salary Law raised the status of the court to that
of “an ordinary constitutional court, standing alongside the Supreme
法庭,” and Thierack, a senior Nazi Party figure at the time, 曾是
named its new president. Thierack was instrumental in shaping
the fledgling court’s procedures and practices to reflect the will of
its founders. More important than the personnel changes was the
symbolic decision to give lifetime tenure to the president of the
法庭, who also presided over the first senate, the three other senate
presidents and six full-time judges. The People’s Court was now
to be the living, and seemingly permanent, embodiment of Nazi
justice.14
同上.
12 Reichsministerium des Innern, “Gesetz zur Änderung,” 341–348.
13
14 Günther Wieland, Das war der Volksgerichtshof. Ermittlungen-Fakten Dokumente (Pfaffenweiler,
1989); Gruchmann, Justiz im Dritten Reich. The quotation comes from Reichsministerium des
Innern, “Das Gesetz über den Volksgerichtshof und über die fünfundzwanzigste Änderung des
Besoldungsgesetzes,” Reichsgestezblatt, 20 四月 1936, Teil I, 369.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
526
| G E E R L IN G , MA G E E , A N D SM Y T H
SOURCES The data used in this article to analyze sentencing be-
havior come from the official state records of cases tried before the
People’s Court and Supreme Court, as collated by the Resistance
as High Treason (Widerstand als Hochverrat) 项目. This project
combined material stored in West German archives about resis-
tance groups with previously inaccessible files from the former
East Germany, Czechoslovakia, and Soviet Union. The microfiche
series that it generated contains around 70,000 pages of court files
that document the judicial prosecution of men and women charged
with high treason and treason who appeared before the central
courts of the Third Reich. It includes a wealth of information re-
garding the indictment, 调查, 判断, and sentencing of
each defendant. These records enable us to reconstruct the profiles
and sentences of political prisoners convicted of treason or high
treason. Whenever possible, we have verified and supplemented
our information with the entries for individuals found in the lead-
ing encyclopedias of German resistance.15
This study examines resistance activities in five of the most
important and populous regions of Germany during the pre-war
period—Bavaria, 柏林, 汉堡, Rhineland, and Sachsen. 这
pre-war period has been selected for study because wartime exigen-
化学系, imperatives, and frequent territorial changes after 1939 inflicted
serious and regular disruptions to the German court system. A focus
on Nazi judicial practice during peacetime provides a “cleaner” per-
观望的. The regions selected for the sample lie in all parts of the
country—north, south, east, and west; they include Germany’s eight
largest cities and industrial centers at the time, as well as a host of
medium and small-sized towns, villages, and rural districts. The sam-
ple captures all of the males in these regions who allegedly committed
acts of high treason and treason between 1933 和 1939, amounting
到 434 cases involving 1,114 defendants—more than one-half of the
大约 2,000 individuals arraigned for high treason and trea-
son before the Supreme Court and People’s Courts during the pre-
war period. 所以, given its size, inclusiveness, and breadth of
15
For more details about the database and its contents, see Zarusky and Mehringer,
Widerstand als Hochverrat; Geerling, Magee, and Robert Brooks, “Faces of Opposition: Juvenile
Resistance, High Treason and the People’s Court in Nazi Germany,” Journal of Interdisciplinary
历史, XLIV (2013), 209–234. For encyclopedias of resistance, see Peter Steinbach and
Johannes Tuchel, Lexikon des Deutschen Widerstandes 1933–1945 (慕尼黑, 1998); idem (编辑。),
Widerstand gegen die nationalsozialistische Diktatur 1933–1945 (Bonn, 2004).
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
| 527
桌子 1
Sentence Received
SENTENCE IMPOSED
NUMBER
PERCENTAGE
Prison
Penitentiary
Death
274
816
24
24.60
73.25
2.15
If sentenced to penitentiary
Mean Sentence
(Months)
80.53
Min Max
标清
12
300
58.32
geographical and temporal coverage, our sample provides an accurate
representation of the trials for high treason and treason in Nazi
Germany for the period specified.16
The summary statistics of the sample presented in Tables 1
通过 6 显示 274 的 1,114 individuals convicted were
sentenced to prison, 816 to the penitentiary, 和 24 to death. 这
mean sentence length for those sentenced to the penitentiary was
6.7 年, with a minimum of 1 year and a maximum of 25 (桌子 1).
The most common convictions were for major high treason (桌子 2).
The mean age of those convicted was 33.7 年; those who re-
ceived the death sentence tended to be slightly older (36.8 年
一般). Approximately 90 percent of defendants of partial
Jewish ancestry (“mixed blood”) were sentenced to the peniten-
tiary or to death (桌子 3). Convictions for major high treason or for
multiple offenses (mainly treason and major high treason) received
punishments more severe than did those for minor high treason
(桌子 4). Left-wing political leaders—around 10 的百分比
sample—constituted almost 60 percent of those sentenced to death.
Trade unionists were also prominent among the convicted (桌子 5).
Although a range of resistance groups is represented in our sample,
slightly more than 65 percent of those convicted belonged to the
KPD, 和 79.2 percent of those sentenced to death were its members
(桌子 6).
Ninety-seven defendants from our sample were not convicted;
sixteen had their cases dismissed; and a further eighty-one were
Statistical information about the regions from which our sample was extracted comes
16
from Statistisches Reichsamt, Statistisches Jahrbuch für das Deutsche Reich (柏林, 1939). As dis-
cussed in the text, the Supreme Court heard cases of high treason and treason before the
creation of the People’s Court in 1934. In our sample, the Supreme Court dealt with thirty-
two cases involving seventy-eight defendants (5.78% of the total).
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
528
| G E E R L IN G , MA G E E , A N D SM Y T H
桌子 2 Convicted Offense
OFFENSE
NUMBER
PERCENTAGE
Treason only
Major high treason only
Minor high treason only
Combination of two of the
above offenses
全部的
Offense with violent resistance
12
798
267
37
1,114
76
0.99
71.63
23.97
3.32
100
6.82
NOTES Major high treason included membership in an illegal organization, engagement in
illegal writings, participation in crimes abroad, subversion of the police or armed forces,
and separatism. Minor high treason consisted of conspiracy to commit high treason, aiding
and abetting, and failure to report. Of the thirty-seven individuals convicted of two offense
类型, all but one were convicted of treason and major high treason; the other one was con-
victed of major and minor high treason. No one was convicted of treason and minor high
treason or major high treason, minor high treason, and treason together.
acquitted. We could not include dismissals and acquittals in our
econometric analysis because the individuals involved did not gen-
erate the same trial records as those who were convicted. Qualitative
analysis of these cases, 然而, reveals that the most common rea-
sons for dismissals and acquittals were perceived psychological illness
and/or a lack of evidence connecting defendants to the activities of
their co-defendants. Acquittal or dismissal, 然而, did not neces-
sarily mean release. Many individuals were taken into “protective
custody” following discharge.
ESTIMATION METHODS The data reported in Tables 1 通过 6
provide prima-facie evidence that demographic and political char-
acteristics, as well as offense types, might have played a part in ex-
plaining sentencing disparities. Certain estimation methods can test
桌子 3
Sentence Received, by Age and Ethnicity
AGE
MIXED BLOOD
SENTENCE IMPOSED
MEAN
标清
NUMBER
4
32.95
Prison
30
33.87
Penitentiary
2
36.79
Death
36
33.70
全部的
NOTE “Mixed blood” denoted individuals with some Jewish ancestry.
9.18
8.16
10.00
8.48
%
11.11
83.33
5.56
100
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
| 529
桌子 4
Sentence by Offense
OFFENSE
Treason only
Major high treason only
Minor high treason only
Combination of two of
the above offenses
Offense with violent
resistance
PRISON
PENITENTIARY
DEATH
NO.
0
101
169
4
%
0
36.86
61.68
1.46
15
5.47
NO.
10
684
98
24
59
%
NO.
%
1.23
83.82
12.01
2.94
7.23
2
13
0
9
3
8.34
54.17
0.00
37.50
12.50
for these possibilities and identify the determinants of sentence
type and severity.
Our analysis adopts the concept of judicial discretion as currently
employed in the law and economics literature. The exercise of
桌子 5
句子, by Political Status or Certain Affiliations
POLITICAL STATUS
Left-wing political leader
Expelled from
Hitler Youth/BDM
Member of trade union
Member of Freikorps
or Stahlhelm
Member of SA/SS
Member of groups dedicated
to protecting the institutions
of the Weimar Republic
PRISON
PENITENTIARY
DEATH
NO. %
12
1
4.38
0.36
76 27.74
6.57
18
10
16
3.65
5.84
NO.
96
1
296
36
18
54
%
NO. %
11.76
0.12
36.27
4.41
2.21
6.62
14 58.33
0
0
6 25.00
8.33
2
0
2
0
8.33
0
0
30
13
4.74
3.68
Member of NSDAP
NOTES “Left-wing political leader” refers to members of the major left-wing political parties—
Communist Party (KPD), Social Democratic Party (SPD), and Socialist Workers’ Party (SAP)—
who held full-time positions or offices either within the Reichstag, a Landtag (state assembly),
or the party organization. BDM stands for Bund Deutscher Mädel, or the League of German Girls,
the female equivalent of the Hitler Youth. The Freikorps (Free Corps) were right-wing para-
military organizations operative during the Weimar Republic. The Stahlhelm (Steel Helmet)
was an organization that represented returned soldiers. The SA, or Sturmabteilung, was a Nazi
paramilitary organization. The SS, or Schutzstaffel, was a Nazi security organization. “Groups
dedicated to protecting the institutions of the Weimar Republic” were established to defend
the Weimar constitution from attacks by both the extreme left and right. These organizations,
the most important of which was the Reichsbanner, drew support from a cross-section of mod-
erate, democratic Weimar society, including German democrats, social democrats, and trade
unionists. The NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) was the National Socialist
German Workers’ Party, the official name of the Nazi Party.
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
530
| G E E R L IN G , MA G E E , A N D SM Y T H
桌子 6
句子, by Resistance-Group Membership
RESISTANCE GROUP
KPD
Trotskyist
KPDO
Other communist
splinter or communist
help organization
SPD
SAP or other socialist
组织
Anarchist/syndicalist
Schwarze Front
BJ
Catholic group
National-conservative
Member of more than
one resistance group
PRISON
PENITENTIARY
DEATH
NO.
170
5
0
7
38
10
0
13
4
2
3
16
%
62.04
1.82
0
2.55
13.87
3.65
0
4.74
1.46
0.73
1.09
5.84
NO.
544
12
17
35
92
20
14
37
3
3
3
27
%
NO.
%
66.67
1.47
2.08
4.29
11.27
2.45
1.72
4.53
0.37
0.37
0.37
3.31
19
0
0
0
1
0
0
0
0
0
0
0
79.17
0
0
0
4.17
0
0
0
0
0
0
0
NOTES KPD stands for the Communist Party of Germany, the official Comintern-affiliated
party in Germany. “Trotskyist” refers to communists belonging to a party adhering to the
views of Leon Trotsky. KPDO stands for the Communist Party of Germany-Opposition—
comprised of communists who had left or been forced out of the KPD because of their oppo-
sition to the party leadership’s embrace of Stalinism. “Communist splinter” refers to other,
small communist parties not affiliated with the Comintern; “communist help organization”
to organizations that provided relief to the families of victims of Nazi oppression. SPD stands for
the Social Democratic Party of Germany; SAP for the Socialist Workers’ Party. “Other socialist
organization” refers to small, socialist parties or groups; “anarchist/syndicalist” to membership
in an anarchist or syndicalist organization. The Schwarze Front (Black Front) was a left-wing
Nazi group opposed to Hitler that had split from the Nazi Party in 1930. BJ stands for Bündische
Jugend, a loosely assembled association of German hiking groups with a traditionalist, 国家-
alistic, and antidemocratic worldview. “Catholic group” refers to all organizations, 最多
importantly the Center Party, that worked to preserve Catholic values in Germany; “国家的-
conservative” to organizations with a conservative agenda that tended to be nationalistic, anti-
semitic, monarchist, and militaristic.
judicial discretion occurs wherever and whenever the demographic
or political characteristics of defendants cause disparities in sentenc-
英 (after controlling for the judge, the offense, and the prior crim-
inal history of the defendant)—in other words, wherever and
whenever extralegal factors, 比如种族, are involved in court
决定. The extent to which sentencing reflects racial bias is the
subject of much of the U.S. 文学. Discretion, 然而, can also
be compassionate—for example, when judges impose lighter sen-
tences due to the age of defendants. In our sample, 所以, 这
我
D
哦
w
n
哦
A
d
e
d
F
r
哦
米
H
t
t
p
:
/
/
d
我
r
e
C
t
.
米
我
t
.
e
d
你
/
j
我
/
n
H
A
r
t
我
C
e
–
p
d
我
F
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
我
n
H
_
A
_
0
0
9
0
3
p
d
.
F
乙
y
G
你
e
s
t
t
哦
n
0
8
S
e
p
e
米
乙
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E – W A R N A Z I G E R M A NY
| 531
exercise of judicial discretion is evident whenever the personal char-
acteristics, political background, or resistance activities of a defendant
have a significant effect on sentencing outcomes, even after we con-
trol for the sentencing judge, the offense, and the defendant’s prior
criminal history.17
Two separate regression models are used in our analysis. 这
first model relates to the determinants of sentence types. 自从
three sentence types were available (prison, penitentiary, or death),
we employ a multinomial logit model, in which we treat peni-
tentiary as the reference case. In the second model, we employ
an ordinary least-squares (OLS) regression to examine what deter-
mined the length of stay in a penitentiary. The dependent variable
is the natural log of sentence length, defined in months. To con-
trol for the myriad factors that potentially affected sentencing, 我们
employ an extensive range of variables, a list of which is provided
表中 7. These variables cover the demographic characteristics,
political backgrounds, resistance activities, prior criminal histories,
and supposed offenses of the individuals. 此外, we control
for whether individuals and/or their co-defendants (如果有的话) coop-
erated during the interrogation process or at the trial and whether
their offenses involved violent resistance, as well as for who held
the presidency of the Court at the time of sentencing.18
Because we know the name of the presiding judge for each case,
we can examine the effect of particular judges on sentences, 控制-
ling for everything else. We do not examine the role of specific char-
acteristics of the judges in influencing sentencing because the judges
were a largely homogenous group—white, middle-aged, 中间-
班级, ethnically German males with conservative, nationalist, 或者
right-wing political backgrounds, retaining their positions only at
the behest of the Nazi regime.19
17
For the econometric analysis of judicial discretion, see Abrams, Bertrand, and Mullainathan,
“Do Judges Vary”; Shawn Bushway and Anne Morrison Piehl, “Judicial Discretion, Legal Factors
and Racial Discrimination in Sentencing,” Law and Society Review, XXXV (2001), 733–764: Beth
Freeborn and Monica Hartmann, “Judicial Discretion and Sentencing Behavior: Did the Feeney
Amendment Reign in District Judges,” 实证法律研究杂志, VII (2010), 355–378 (看
also references in n. 5).
18 Multicollinearity does not pose any problems for our analysis. All pairwise correlations
between independent variables are < 0.3. Apart from age and age2 (as expected) and a few of
the judges, all variance inflation factors are much less than 10.
19 William Sweet, “The Volksgerichtshof: 1934–1945,” Journal of Modern History, XLVI
(1974), 314–329; Wachsmann, Hitler’s Prisons, 71.
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
Table 7 Characteristics of the Defendants and Trials
PERSONAL
MEAN/SD OR %
Age at indictment
Education
Primary
High School
Tertiary
Mixed blood
Foreign citizen or stateless
Chronic poor health
Unemployed
Married
Number of children
POLITICAL BACKGROUND
Left-wing political leader
Expelled from Hitler Youth/BDM
Member of youth street gang
Member of a nonpolitical or
nonreligious organization
(hiking, sporting, Red Cross)
Member of trade union
Member of Freikorps or Stahlhelm
Member of SA/SS
Member of group dedicated to
protecting the institutions of
the Weimar Republic
Member of NSDAP
RESISTANCE GROUP
KPD
Trotskyist
KPDO
Other communist splinter or
communist help organization
SPD
SAP or other socialist organization
Anarchist/syndicalist
Schwarze Front
BJ
Catholic group
National-conservative
Member of more than one
resistance group
CONVICTED OFFENSE(S)
Treason only
Major high treason only
Minor high treason only
Combination of two of the
above offense types
Offense with violent resistance
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
33.97/8.83
81.17%
10.57%
8.26%
3.06%
3.31%
9.08%
31.30%
56.81%
0.38/0.99
10.57%
0.17%
0.66%
18.25%
33.36%
5.62%
2.89%
6.52%
4.29%
65.80%
1.52%
1.52%
3.77%
11.76%
2.69%
1.26%
4.49%
0.60%
0.44%
0.53%
3.86%
0.99%
71.63%
23.97%
3.32%
6.82%
P O L I T I C A L PR I S O N E R S I N P R E - W A R N A Z I G E R M A NY
| 533
Table 7
(Continued)
PERSONAL
CRIMINAL HISTORY
Previous term of imprisonment
Previous major political conviction
Previous minor political conviction
Previous non-political conviction
INTERROGATION PROCESS
Defendant cooperated
Co-defendant cooperated
MEAN/SD OR %
28.90%
6.19%
14.29%
25.35%
83.98%
98.58%
RESULTS The results of the estimations of our two models are pre-
sented in Table 8. Columns (1) and (2) of the table, which report
the results for a multinomial logit model of sentence type, show
that certain personal characteristics were significant in determining
a sentence, even after controlling for political background, resis-
tance activity, criminal history, and presiding judge. We included
both the age at indictment and the square of this variable to allow
for potential nonlinearity. The fact that for prison, the sign on age
was negative and on age-squared positive suggests that, relative
to being sentenced to a term in a penitentiary, the probability of
being sentenced to prison exhibited a U-shaped relationship with
respect to age. In other words, young and old defendants were
more likely to be sent to prison—the least-severe punishment—
whereas middle-aged defendants had a higher probability of re-
ceiving a penitentiary sentence.
Columns (1) and (2) also reveal that those with a tertiary edu-
cation or who were married had a higher likelihood of being
sentenced to prison or death, relative to being sentenced to a pen-
itentiary. Note that the link between being married and receiving
the death sentence is significant at only the 10 percent level and is
likely to be more correlative than causative, reflecting the fact that
senior resisters were more likely to be both executed and married.
Table 8 also shows that those who were of “mixed blood” were
less likely to be sentenced to prison than the penitentiary, that is,
to receive the least harsh form of punishment.
Regarding defendants’ political background, affiliation, and
resistance activity, being a left-wing political leader reduced the
likelihood of being sentenced to prison and increased the likelihood
of being sentenced to death, relative to being sent to a penitentiary.
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
Table 8 Determinants of Sentencing
MULTINOMIAL LOGIT
RESULTS FOR
SENTENCE RECEIVED
(1) PRISON
(2) DEATH
(3) DETERMINANTS
OF SENTENCE
LENGTH IN
PENITENTIARY
PERSONAL
Age at indictment
Age at indictment 2
−0.319***
(−3.834)
0.004***
(3.888)
High school
EDUCATION (REF = PRIMARY SCHOOL)
0.594
(1.621)
0.918**
(2.108)
−2.558**
(−2.078)
Mixed blood
Tertiary
NATIONALITY (REF = GERMAN, AUSTRIAN)
Foreign citizen
or stateless
Chronic poor health
Unemployed
Married
Number of children
Left-wing political
leader
Expelled from
Hitler Youth/BDM
Member of youth
street gang
Member of nonpolitical
and nonreligious
organization
Member of trade union
Member of Freikorps
or Stahlhelm
Member of SA/SS
Member of groups
dedicated to protecting
the Weimar Republic
Member of NSDAP
0.303
(0.425)
−0.273
(−0.585)
−0.342
(−1.412)
0.952***
(3.445)
−0.229
(−1.533)
−1.073**
(−2.232)
−0.184
(−0.094)
1.374
(0.774)
0.594**
(2.208)
0.281
(1.106)
0.992**
(2.040)
0.288
(0.389)
−0.041
(−0.088)
−0.233
(−0.323)
1.190
(1.190)
−0.011
(−0.917)
−22.911
(−0.003)
1.570**
(2.132)
−8.409
(−0.047)
12.477
(0.698)
−13.030
(−0.755)
−22.846
(−0.003)
9.283*
(1.849)
−0.771
(−0.520)
1.507**
(2.302)
6.960
(0.000)
−13.137
(0.000)
2.167
(0.909)
−0.650
(−0.486)
7.866
(0.411)
−14.874
(0.000)
−0.526
(−0.046)
18.079
(0.000)
POLITICAL BACKGROUND (REF = NO POLITICAL AFFILIATION)
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
0.046**
(2.212)
−0.001**
(−2.208)
0.066
(0.841)
0.181*
(1.858)
0.030
(0.214)
0.143
(1.069)
0.101
(1.205)
−0.020
(−0.385)
−0.030
(−0.552)
0.005
(0.202)
0.310***
(3.945)
0.278
(0.429)
0.003
(0.009)
0.046
(0.778)
0.009
(0.183)
−0.051
(−0.424)
−0.005
(−0.030)
−0.202*
(−1.944)
−0.023
(−0.137)
Table 8
(Continued)
MULTINOMIAL LOGIT
RESULTS FOR
SENTENCE RECEIVED
(1) PRISON
(2) DEATH
(3) DETERMINANTS
OF SENTENCE
LENGTH IN
PENITENTIARY
RESISTANCE GROUP (REF = NOT MEMBER OF RESISTANCE GROUP)
KPD
Trotskyist
KPDO
Other communist
splinter or communist
help organization
SPD
SAP or other
socialist organization
Anarchist/syndicalist
Schwarze Front
BJ
Catholic group
National-conservative
INTERROGATION PROCESS
Defendant cooperated
Co-defendant
cooperated
Major high
treason only
Minor high
treason only
Combination of
two offenses
Offense with
violent resistance
CRIMINAL HISTORY
Previous term of
imprisonment
Previous major
political conviction
Previous minor
−1.052
(−1.639)
−0.352
(−0.351)
−24.723
(0.000)
−0.257
(−0.296)
−0.577
(−0.812)
0.184
(0.233)
−25.766
(0.000)
0.021
(0.022)
0.428
(0.299)
0.177
(0.106)
25.497
(0.001)
−1.520
(−0.125)
−4.014
(0.000)
−10.645
(0.000)
−24.856
(−0.001)
−34.487
(−0.001)
−43.604
(−0.002)
−4.348
(0.000)
−54.412
(0.000)
19.652
(0.000)
−4.728
(0.000)
−24.776
(0.000)
−2.652
1.419***
(−0.989)
(3.405)
−12.414**
0.687
(−2.043)
(0.567)
1.821*** −13.425
(−1.829)
(7.49)
2.153*** −43.359
(−0.003)
(8.751)
−1.010
1.821***
(−0.238)
(7.144)
−2.111***
2.875**
(−4.665)
(2.224)
−0.060
(−0.135)
0.256
(0.417)
0.161
6.720
(1.821)
3.623
(1.410)
−6.555*
CONVICTED OFFENSES (REF = TREASON ONLY)
0.218
(1.632)
−0.074
(−0.331)
0.176
(0.875)
−0.088
(−0.517)
0.107
(0.708)
0.051
(0.270)
0.114
(0.429)
−0.055
(−0.268)
0.227
(0.503)
−0.065
(−0.177)
0.143
(0.291)
−0.194***
(−3.163)
0.142
(0.728)
−0.426
(−1.561)
−0.122***
(−4.306)
0.069
(0.234)
0.519***
(4.292)
−0.070
(−0.786)
0.114
(1.094)
0.171**
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
Table 8
(Continued)
MULTINOMIAL LOGIT
RESULTS FOR
SENTENCE RECEIVED
political conviction
Previous nonpolitical
conviction
PRESIDING JUDGE (REF = THIERACK)
(1) PRISON
(2) DEATH
(−1.849)
−5.499*
(−1.740)
(0.378)
−0.226
(−0.619)
−45.270
1.071
(0.054)
(0.001)
−33.825
1.014
(−0.001)
(0.690)
22.435
26.744
(0.000)
(0.000)
−25.482
−22.824
(0.000)
(0.000)
8.503
3.199
(0.000)
(1.399)
3.907
4.226**
(0.000)
(2.411)
−11.145**
−0.037
(−2.054)
(−0.027)
−58.985
2.730
(0.000)
(1.608)
−42.688
1.240
(−0.003)
(0.947)
−46.243
2.482*
(−0.002)
(1.86)
−31.195
3.242*
(0.000)
(1.841)
−24.407**
1.101
(−2.190)
(0.851)
13.344
27.545
(0.000)
(0.000)
−9.101
−23.451
(0.000)
(0.000)
27.129
45.024
(0.000)
(0.000)
4.578** −31.155
(2.448)
(0.000)
−11.798
3.377*
(1.706)
(0.000)
−42.182
0.034
(0.000)
(0.020)
3.295** −20.663
(2.193)
(0.000)
−15.670**
1.242
(−1.969)
(0.922)
(3) DETERMINANTS
OF SENTENCE
LENGTH IN
PENITENTIARY
(2.031)
0.092
(1.306)
0.007
(0.025)
−0.628***
(−2.895)
−0.372
(−0.987)
0.212
(0.352)
0.077
(0.126)
0.129
(0.701)
−0.134
(−0.406)
−0.200
(−1.118)
−0.176
(−0.886)
−0.266
(−0.712)
−0.203
(−1.100)
−0.403
(−0.849)
0.220
(0.352)
−0.630
(−1.033)
−0.657***
(−2.797)
−0.605
(−1.597)
−0.161
(−0.828)
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
Albrecht
Bruner
Bünger
Diester
Doorberg
Driver
Engert
Greulich
Hartmann
Jenne
Köhler
Lämmle
Linz
Löhmann
Mengelkoch
Merten
Müller
Rehn
Rheinisch
Schaad
P O L I T I C A L PR I S O N E R S I N P R E - W A R N A Z I G E R M A NY
| 537
Table 8
(Continued)
MULTINOMIAL LOGIT
RESULTS FOR
SENTENCE RECEIVED
(1) PRISON
1.798
(1.388)
−4.227
(0.000)
−17.662
(0.000)
1,114
(2) DEATH
−14.925**
(−2.423)
−58.154
(0.000)
−10.964
(−0.551)
1,114
(3) DETERMINANTS
OF SENTENCE
LENGTH IN
PENITENTIARY
−0.197
(−1.087)
0.380
(0.724)
3.728***
(7.136)
816
Schauwecker
Springmann
Constant
N
***Significance at the 1% level.
**Significance at the 5% level.
*Significance at the 10% level.
NOTES Values presented are estimated coefficients. The reference case for multinomial logit is
being sentenced to a penitentiary. The dependent variable for sentence length in a peniten-
tiary is ln (term in penitentiary in months). Z-scores (for the multinomial logit) and t-values
(for the penitentiary-sentence-length regression) are given in parenthesis.
Membership in a nonpolitical and nonreligious organization like
the Red Cross or a right-wing militia or veteran’s group, like the
Freikorps or Stahlhelm, increased the chance of being sentenced to
prison.
Defendants who cooperated with authorities usually earned
some degree of leniency, increasing the prospect of a prison sen-
tence, relative to being sentenced to a penitentiary. The cooper-
ation of a co-defendant also reduced the likelihood of a death
sentence, again relative to being sentenced to a penitentiary. This
finding suggests that judges during the pre-war period may have
been reluctant to give death sentences purely on the basis of suspect
testimony from co-defendants.
Various types of offense also had a significant effect on the
punishment imposed. Relative to committing treason alone (the
reference case), defendants who committed only major high trea-
son, only minor high treason, or a combination of offenses were
more likely to be sent to prison than to a penitentiary. This finding
confirms that senior Nazi-era judges considered treason—the col-
laboration with a foreign power to undermine the state—as the
most serious offense. Moreover, convictions that involved violent
resistance decreased the prospect of a prison sentence and increased
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
538
| G E E R L IN G , MA G E E , A N D SM Y T H
the prospect of receiving the death penalty, relative to the peniten-
tiary option. Those with previous minor political convictions and
previous nonpolitical convictions were less likely (but only at the
10 percent level of significance) to receive a death sentence, com-
pared to the reference case of no prior convictions, relative to those
sentenced to a penitentiary.
Columns (1) and (2) also provide evidence of judge-specific
differences in sentencing. Relative to Thierack, several judges
(Marcell Driver, Ernst Jenne, Alfred Köhler, Johannes Merten,
Hans Müller, and Fritz Rheinisch) were more likely to sentence
defendants to prison, the lesser penalty, than to the penitentiary.
Furthermore, relative to Thierack, Judges Karl Engert, Paul
Lämmle, Friedrich Schaad, and Erich Schauwecker were more
likely to sentence defendants to death than to the penitentiary.
Column (3) of Table 8 reveals what determined the lengths of
penitentiary terms. Certain personal characteristics of defendants
were significant. Age exhibited a nonlinear inverted U-relationship
with sentence length, reaching a maximum at forty years of age.
Relative to those whose education did not extend beyond primary
school, defendants with a university education typically received
18.1 percent longer sentences. Regarding the variables depicting
political background and resistance activities, left-wing political
leaders received 31 percent longer sentences, whereas former
members of groups previously dedicated to protecting the Weimar
Republic received 20.2 percent shorter sentences.
Defendants who cooperated received sentences reduced by
19.4 percent. Defendants who committed minor high treason
received sentences 12.2 percent lighter than did those who com-
mitted treason. If the offense involved violent resistance, the sen-
tence was 51.9 percent higher. Defendants with a previous minor
political conviction had the length of their sentences increased by
17.1 percent relative to those without any prior convictions. There
was also some variation in sentencing between judges; Wilhelm
Bruner and Fritz Rehn imposed lighter sentences than did Thierack,
the reference point.
From the time of the Machtergreifung (seizure of power), the Nazi
regime used the Supreme Court and then the People’s Court as
means to facilitate and expedite the prosecution and elimination
of its political opponents. To that end, the new Nazi leadership
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E - W A R N A Z I G E R M A NY
| 539
of the pre-war years, ever keen to appropriate for itself the legit-
imacy of Germany’s inherited legal traditions and confident of its
ability to control the central institutions of society, was willing to
give its judges significant latitude to act. By all accounts, this trust
was not misplaced. Econometric analysis of sentencing patterns in
this period confirms that on the whole, the performances of the
judges conformed to Nazi expectations.
The existence of this degree of judicial freedom, however,
injected a distinct element of heterogeneity into the sentencing pro-
cess. Not all sources of political opposition, for example, received
equal treatment from the pre-war Nazi court system; the courts
operated in a more nuanced manner, targeting more ruthlessly those
resisters whom judges believed to pose the greatest threat. From the
regime’s perspective, the greatest and most imminent threat of the
immediate post-Weimar years clearly lay, as previous literature about
resistance and the People’s Court has identified, on the left, in par-
ticular the two mass left-wing parties of the period, the KPD and the
SPD. In the 1930s, these were the political movements best positioned
to challenge Nazi supremacy. They were also the only parties in our
sample to have their members executed. Our estimations, moreover,
reveal that those holding positions of authority in a left-wing party
attracted the most attention from the courts. KPD cadres, who con-
stituted the vast majority of these left-wing leaders, were among the
most likely to receive death sentences or the longest terms in peni-
tentiaries, the two harshest treatments. Around 12 percent of KPD
cadres, for example, were executed; the overall execution rate for
defendants in our sample was slightly more than 2 percent. Not sur-
prisingly, KPD leaders were also less likely to receive the least severe
penalty of a prison sentence.
Rank and file members of the KPD did not fare well either.
Although, statistically speaking, they were not as openly targeted
for treatment as harsh as that suffered by their leaders, normal
members of the KPD nonetheless faced a disproportionate chance
of capital punishment. As Table 6 shows, three out of every four
defendants sentenced to death in our sample belonged to the KPD.
By contrast, affiliates of smaller left-wing or Catholic organizations,
as well as right-wing and national-conservative groups, which
were lesser threats to the state, were more likely to receive the most
lenient sentence, a term in a normal state prison. Defendants with
records of involvement in right-wing militias and associations with
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
| G E E R L IN G , MA G E E , A N D SM Y T H
540
affinities to National Socialism—particularly the Freikorps and
Stahlhelm—were generally earmarked for lighter punishment.20
In a similar manner, judges appear to have taken the serious-
ness of threats posed by the act of resistance into consideration,
distinguishing between major and minor forms of treason and high
treason. Compared with entering into a conspiracy to commit
high treason or aiding and abetting, the more serious charges of
assisting foreign powers, trafficking in illegal writings, committing
crimes abroad, separatism, and subversion of the armed forces car-
ried a greater likelihood of execution or a longer term in a peni-
tentiary. Moreover, those who engaged, or sought to engage, in
violence against the regime were also more harshly punished than
those whose resistance took a nonviolent form.
Nazi-era judges, however, were not just sensitive to the level
of political threat posed by defendants. Indeed, in spite of the
highly political nature of the trials over which they presided, judges
also routinely took personal factors into consideration. Younger
and older resisters, the better educated, those active in nonpolitical
and nonreligious community organizations, those who were mar-
ried, and those who showed “good character” by cooperating with
the authorities were all less likely to face the guillotine (the Nazis’
preferred means of execution) or long stints in a penitentiary. By
the same token, judges, no doubt reflecting prevailing Nazi preju-
dices, tended to view those of partial Jewish ancestry less favorably.
Our findings lend weight to Marxen, Schlüter, and others
whose work has advanced our once-crude understanding of the
pre-war People’s Court as a mere blood tribunal and venue for
mock trials. Although the People’s Court dutifully enacted the
will of the Nazi state from its inception, its decisions also reveal
that, at least during this pre-war interval, its sentencing was neither
indiscriminate nor a complete farce. The Court still retained a sem-
blance of legal procedure. Most importantly, the new econometric
evidence presented in this article suggests that even in sentencing
political prisoners, individual People’s Court and Supreme Court
20
For the targeting of communist resistance, see, for example, Wolfgang Benz, Der deutsche
Widerstand gegen Hitler (Munich, 2014), 18–22; Eric Weitz, Creating German Communism, 1890–
1990: From Popular Protests to Socialist State (Princeton, 1997), 6; Frank McDonough, Opposition
and Resistance in Nazi Germany (New York, 2001), 5–11; Wagner, Der Volksgerichtshof, 107; for
an overview of the major political parties in the 1930s, Weitz, Weimar Germany: Promise and
Tragedy (Princeton, 2009), 81–127.
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
P O L I T I C A L PR I S O N E R S I N P R E - W A R N A Z I G E R M A NY
| 541
judges, like judges in democratic countries, took a range of miti-
gating personal considerations into account. Even after controlling
for the political backgrounds, resistance activities, criminal histo-
ries, and personal characteristics of defendants, this analysis detects
significant statistical differences between the sentencing patterns of
individual judges; some were more lenient than others.21
At least in this period, no standard set of sentences for high
treason or treason is in evidence; there were no guidelines that
had to be strictly followed, regardless of context. Several of the
judges often appear to have taken the opportunity to show relative
leniency. Unlike in contemporary U.S. courts, where, as some
have argued, the political composition of the bench affects the
use of discretionary tools, political differentiation between the
judges in the People’s Court and in the Supreme Court was ex-
tremely narrow. All of these judges were deeply nationalistic and,
if not members of the Nazi Party, they certainly sympathized with
much of its ideological content. Jenne, for example, who sen-
tenced more than 5 percent of all defendants in our sample and
who had been a member of the Nazi Party since December 1930,
was ceteris paribus more likely to deliver a prison sentence to a political
prisoner (as opposed to hard labor in a penitentiary or death) than
was Thierack, the longest-serving president of the People’s Court.
Likewise, Bruner, the first vice-president of the People’s Court, gave
penitentiary sentences that were, on average, 63 percent shorter. At
least until the outbreak of war, judges did not mindlessly implement
prearranged sentences. Nor did their decisions always meet with
political approval. The Nazis’ empowerment of its judges during
the pre-war years had its limits; even in the most political of trials,
it was not yet the complete, predetermined façade often assumed.22
The People’s Court is usually associated with notions of sum-
mary justice, execution, and the total denigration of civil and legal
rights. It is difficult to disassociate the image of the ranting, mer-
ciless Freisler, who assumed the presidency of the People’s Court
in August 1942, from the less theatrical and bloodthirsty origins
of the court. However, even though from its beginnings in
1934, the People’s Court represented the political will of the state,
21 Marxen, Das Volk, 34–87; Schlüter, Die Urteilspraxis, 140–55; Gruchmann, Justiz im Dritten
Reich, 956–968.
22
Sweet, “Volksgerichtshof,” 317.
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
542
| G E E R L IN G , MA G E E , A N D SM Y T H
in comparison with the war years, as recent literature shows, the
pre-war People’s Court remained relatively moderate. Death sen-
tences were rare, and certain vestiges of legal integrity remained—
which is not to imply that this court at any time was known for its
impartiality, fairness, or justice. But as the war progressed, inclining
the Nazi regime to further brutality, its rulers prevailed on the
nation’s legal system to deliver ever-more ruthless and expeditious
forms of summary justice to their enemies. Fatefully, the People’s
Court and its judges, especially under the presidency of Freisler,
proved themselves only too willing to adapt and oblige.23
As this article demonstrates, the relationship between author-
itarian rule and judicial discretion is neither straightforward nor
necessarily antagonistic. It is an association fraught with ambiguity,
uncertainty, and tension. The experience of the People’s Court in
pre-war Nazi Germany, however, confirms that a modus vivendi,
even if tenuous and short-lived, is at least possible. As long as it
is perceived as enhancing the legal system and the legitimacy of
the regime and does not become a vehicle for opposition, a modi-
cum of judicial autonomy can sit, at least for a while, side by side
with dictatorship.
l
D
o
w
n
o
a
d
e
d
f
r
o
m
h
t
t
p
:
/
/
d
i
r
e
c
t
.
m
i
t
.
e
d
u
/
j
i
/
n
h
a
r
t
i
c
e
-
p
d
l
f
/
/
/
/
4
6
4
5
1
7
1
7
0
1
2
7
4
/
j
i
n
h
_
a
_
0
0
9
0
3
p
d
.
f
b
y
g
u
e
s
t
t
o
n
0
8
S
e
p
e
m
b
e
r
2
0
2
3
23 This increased severity of the People’s Court is neatly captured by its growing use of the
death penalty, especially from 1942 onward. In 1941, only 8.8% of those whom it convicted
received a death sentence; by 1944, that share had risen to 54%. See Schlüter, Urteilpraxis, 38.
For a comprehensive account of the growing radicalization of Nazi terror within the legal
system more generally, see Wachsmann, Hitler’s Prisons.
下载pdf