As the continent gets more diverse, its lenient criminal justice system won’t cut it.
- By Yascha MounkYascha Mounk is a lecturer in political theory at Harvard University and a Carnegie Foundation Fellow at New America.
A little over a year ago, three Palestinian asylum-seekers tried to burn down a synagogue in the small German city of Wuppertal. Asked about their motives, they openly stated that they were protesting the policies of the Israeli government. Even so, the judge who oversaw their case refused to treat their actions as a hate crime. Arguing that it need not be anti-Semitic to throw six Molotov cocktails at a synagogue, he sentenced the perpetrators to a few months’ probation. They were able to stay in Germany and didn’t spend a single night in jail.
This kind of judicial leniency is all too typical in Germany — and much of Europe. It applies to ordinary criminals; to immigrants who are unwilling to play by the rules of a liberal society; and even to right-wing extremists who commit violent crimes against refugees.
But the fact that this impunity applies equally to all does not make it less of a problem, especially amid the ongoing refugee crisis. By failing to enforce the ground rules for an increasingly diverse society, Europe is undermining the prospects for peaceful coexistence between immigrants and natives.
If ordinary Germans are to accept that immigrants who play by Germany’s rules deserve a chance to make the country a real home, they must also be assured that those who don’t will suffer real consequences. Conversely, if immigrants are to feel safe in Germany despite the growing backlash against them, they need to know that the state will mete out tough and effective punishments for xenophobic attacks. At the moment, the German justice system fails at both tasks.
The recent assaults in Cologne demonstrate just how quickly the perception of impunity can fan the flames of prejudice. On New Year’s Eve, hundreds of men, many of them allegedly refugees from North Africa and the Middle East, robbed and sexually assaulted scores of women. The scale of the event is unprecedented in recent years — and yet it is already becoming evident that most of the perpetrators will escape prosecution. Those few who do go in front of a judge are unlikely to face severe consequences.
In part as a result, Germany’s debate about refugees has taken a nasty turn. For fear of seeming racist, much of the media had avoided talking about the real problems that might be caused by the arrival of hundreds of thousands of unaccompanied young men. Now, the mood has turned on a dime. Even left-wing politicians and pundits are openly questioning whether Syrian refugees can ever come to respect Western values, like sexual self-determination. Meanwhile, every day brings fresh news of overt discrimination against refugees. Nightclubs in Freiburg have banned foreigners. Swimming pools are turning away unaccompanied men “with migrant roots.” The list goes on.
For decades, many ordinary Germans have balked at thinking of anybody who hailed from a different part of the world or had a different religion as a true member of the nation. If the project of integrating a million refugees a year is going to succeed, they will have to accept that even somebody who looks Middle Eastern, worships Allah, and speaks Arabic at home can be a “true German.” To do so, they need to redefine the conditions for membership — de-emphasizing ethnic origin and re-emphasizing adherence to the rules enshrined in German law.
For many, this transformation of what it means to be German is a tough sell. So long as the boundaries of this new identity are clearly stated — and the state stands ready to enforce it — it has a real chance of succeeding. But failures like those in Cologne and Wuppertal make it all too easy for populists to tell a much simpler narrative, one according to which immigrants will never obey the rules and always pose a danger to Germany’s core values.
If some natives feel that the judicial system does not enforce local laws forcefully enough when newcomers violate them, immigrants have even stronger reason to fear that German authorities don’t do enough to protect them against a resurgent scene of right-wing extremists. Germany’s abject failure to bring to justice the hundreds of “ordinary citizens” who have carried out arson attacks on the homes of refugees is especially striking. According to an extensive analysis by Die Zeit, refugee homes in Germany were attacked 222 times in the first 11 months of 2015. But that wasn’t the truly shocking figure: Suspects were arrested in only 41 of these cases. They faced criminal prosecution in eight instances. They were punished in only four.
The leniency they encounter when they do face a judge is more shocking still. Take the case of a middle-aged civil servant who was so enraged at the fact that a handful of refugees were to be settled in an empty apartment near his home that he tried to set the building on fire — before driving to a nearby supermarket to buy cheese, butter, and some pickles. As is so often the case, his punishment was difficult to distinguish from impunity: Like those asylum-seekers who attacked the synagogue, he was given probation, and did not spend a single night in jail.
The message this has sent to immigrants living in Germany is not only troublesome but also keenly felt: The highest officials in the state may pay lip-service to the fight against ring-wing extremists, but the actual actions of the state betray a deep indifference toward their victims. No wonder so many immigrants — even among the millions who were born and raised in Germany — feel like second-class citizens.
Of course, there are good reasons why Europe has erred on the side of short prison sentences and a forgiving approach to criminal justice. Even jails that are designed to be humane are unremittingly cruel places. They often encourage recidivism and breed a criminal counterculture. Long prison sentences affect not only the convicts themselves, but also impoverish their family members.
America demonstrates how dangerous it is for a criminal justice system to go one step — or rather, several dozen steps — too far in the direction of vengefulness. In the United States, even nonviolent offenders are routinely locked up for decades. The lack of serious efforts at rehabilitation — both in jail, where most educational offerings have been abolished, and after convicts are released, when unnecessary rules and restrictions make it hard for them to find a job — dooms many of them to a life as serial convicts. Now, the tide is finally starting to turn against the prison-industrial complex. Wouldn’t this be rather a strange time for Europe to emulate America’s failed experiment with mass incarceration?
Absolutely. But while Europe should stay far clear of America’s needlessly vindictive policies, it now finds itself on the other end of the spectrum: excessive leniency. After all, punishment for violent crime does serve important purposes. It deters would-be criminals. It gives victims of crimes and their families the sense that justice has been served. Perhaps most importantly, it allows society to eliminate ambiguity about its boundaries: Some acts are so reprehensible that even a liberal country — one that feels understandably queasy about the cruelty involved in confining somebody to captivity — is compelled to lock up the perpetrators.
By neglecting each of these goals, Germany has severely hamstrung its efforts at building a truly liberal society. On the one side, it has allowed the country’s right-wing extremists to become more dangerous by releasing perpetrators of violent hate crimes after a few months in custody, or sparing them prison terms altogether. On the other side, it has allowed populists to stoke fear by claiming that the political establishment is too politically correct to punish migrants who break the law.
Superficially, Germany’s soft approach to crime is motivated by liberal values. But a tough stance on violent criminals who break the law — whether they be German or Syrian; sexist, Islamophobic, or anti-Semitic — is no betrayal of liberal society. On the contrary, it is a necessary condition for an increasingly diverse population to live together in peace.
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