Jail - A place for Enemy of the State Law!?

Jail - A place for Enemy of the State Law!?

Over 30 years ago, namely at 16.03.1976 the German Bundestag adopted penal law.
Up till that point there had been no prison regulatory law measures in the FRG,
but this separation meant the prevelance of the concept of "special force
relationship", which set the fundamental rights of the prisoners almost
completely out of balance. As a result of several decisions made by the Federal
Constitutional Court the legislator saw himself compelled to regulate the rights
and duties of prison inmates.

In the last years some discussions have taken place in German law about the
introduction of such an 'enemy of the state law(Feindstrafrecht in German).'
After a short explanation of the term 'enemy of the state law' I would like to
pursue the question, of whether developments which point to a tacit realization
of elements of this enemy of the state law have already become apparent and thus
might lead to the execution of the initially introduced penal law ad absurdum.

Recently, criminal law professor Jakobs, from Bonn, has, particularly, forced
the discussion around the introduction of an 'enemy of the state law.' (vgl.
Jakobs in HRRS 2004, S. 88 ff., the HRRS-Newspaper is available free online in
german at: http://www.hrr-strafrecht.de/). According to this anyone who denies
the legitimacy of the legal system in principle, and therefore is out to
destroy its order, is excluded from the (Legal) Community and declared an
'enemy.' With the term „Terrorist“ at the forefront, Jakobs also aims at
people, who are counted amongs those who are part of organized crime, as well
as violent and sex offenders.

Once classified as an 'enemy,' the relationship „state – offender“ is no longer
a legal one, instead marked by the constraint that the 'enemy' no longer exists
as a person. He is denied being a person and is considered simply as a coerced
addressee (see Lehnert in Forum Recht 2005, S. 96-100).

Now the question arises that, whether or not these developments have been
ignored or criticized by the legal doctrine, they have nevertheless gained at
least partial entrance into the execution of everyday life.

A look into the US camps at Abu Ghraib or Guantanamo shows 'the enemy of the
state law' put into its fullest and harshest practice. Violence towards
prisoners from a movement of resistance is part of everyday life. The torture
of prisoners is so much a part of the routine that photos of the abuse in Abu
Ghraib were used as screensavers in a computer lab(see Emcke in Le Monde
Diplomatique, August 2005, S. 15-16). Fortunately, such conditions do not, yet,
prevail in German detention facilities.

But it is already perplexing, that in August 2002 the Judiciary Senator Kusch
made his way to Phoenix, Arizona in the USA in order to get suggestions for the
treatment of prisoners from the "hardest Sheriff in the USA" (see Junge Welt vom
30.6.2004). After his visit with Sheriff Joe Arpaio, Kusch forced the systematic
dismantling of alleged privileges, in order that "detention (...) become once
again noticeable as detention" and less as a "luxury vacation." As a
consequence needle-dispensers for drug-addicted prisoners were abolished,
telephone calls were shortened, as were visits from relatives and friends;
non-working prisoners (e.g. because there is no work) were locked away 22 1/4
hours daily, and despite inhumane conditions cells were occupied by several
prisoners (see Dervishaj in Forum Recht 2005, S. 84-87).

Each single restriction in itself already shows that the judiciary
administration doesn't consider the prisoner, as a person, but rather someone
with whom to speak only as a coerced addressee (see Lehnert in Forum Recht
2005, S. 16).

I am able to report similar examples from my own experiences in the penal
institution Bruchsal: despite court promises, 9 square meter small cells, whose
toilets are not spatially separated from the rest of the cell, are still shared
by two prisoners beneath humane conditions nothing changes. Each day on my way
to the prison yard I see two name plates by each cell, i.e. the single cells
are occupied by two prisoners.

Jakobs (a.a.O.) writes that „an individual, who does not allow himself to be
coerced into a civil state, cannot share in the blessings of being called a
person.“ Jakobs' arrogant tone, speaks volumes in its commendation that in
daily prison life large aspects of the „blessings of being called a person“ be
withheld or even denied. This points again to the fact that the prisoner is
regarded as an enemy in the conscious of the prison personnel, the superior
Ministry, as well as the politician – carefully stated. The resulting
consequences being: even harder detention regime, even longer lasting
safe-keeping.

Thus Lehnert (a.a.O.) states as an example the long-term "preventive detention"
(the 1933 expressis verbis introduced to „render inoffensive“ „public enemies“)
in line with the tools proposed by Jakobs in the final combatting of the enemy
(Jakobs considers torture not only permissable, but almost a requirement, just
as his professor and colleague Brugger).

We’re left to hope that the prisoners of this reality become aware and adjust.
However, support from outside the prison walls is just as important.To end
this, Jakob's Thoughts taken further turn the supporters, because of their
assistance, into enemies in the eyes of the national authority.

Thomas Meyer-Falk, c/o JVA - Z. 3117, Schönbornstr. 32, D-76646 Bruchsal
homepage: http://www.freedom-for-thomas.de