Criminal sanctions are a form of individual punishment that aim to have an impact upon the offender as a lone individual. That said, criminal sanctions also invariably impact upon the social surroundings and circumstances of the offender - in particular family members (and presumably friends and social acquaintances too). This research project aims to study the effect of criminal sanctions on so-called “third parties” (i.e., the relatives, friends and associates of the offender). The project concentrates on an analysis of to what extent §§ 56 and 57 of the StGB (German Criminal Code (on suspended sentences and probation)) take into account the role of third parties within the judicial decision making process. In addition, the project also analyses how individual correctional facilities in Baden-Württemberg have implemented §§ 23 to 36 of the StVollzG (German Law of Prison Administration) which pertains to the possibility for prisoners to maintain contact with their families, relatives and friends.

It is well ac­cep­ted in the field of crim­in­o­logy that while crim­in­al sanc­tions are in­ten­ded to only im­pact upon the of­fend­er as an in­di­vidu­al, the of­fend­er’s re­l­at­ives re­main un­deni­ably af­fected. The in­di­vidu­al met­ing out of crim­in­al sanc­tions is some­times even de­scribed as a leg­al fic­tion, be­cause a neg­at­ive im­pact on re­l­at­ives can­not be avoided, even though it is not the ex­pli­cit aim of mod­ern justice. After all, hu­mans are not eco­nom­ic­ally, so­cially or emo­tion­ally in­de­pend­ent be­ings, but are rather em­bed­ded with­in the so­cial en­vir­on­ment. There­fore, in­di­vidu­al pun­ish­ment will al­most in­vari­ably af­fect the so­cial en­vir­on­ment of the con­victed of­fend­er, and par­tic­u­larly the mem­bers of this en­vir­on­ment with whom the of­fend­er is most closely re­lated.

Two con­flict­ing con­di­tions un­der­score the ef­fect that the pun­ish­ment of an of­fend­er has on the of­fend­er’s re­l­at­ives. On the one hand, the de­lin­quent, through his/her own ac­tions, places a bur­den on their re­l­at­ives. On the oth­er hand, as the be­ha­viour of the de­lin­quent is crim­in­ally con­demned and sanc­tioned by the state this in turn places a fur­ther bur­den on the re­l­at­ives. This bur­den placed on re­l­at­ives by the state can in­deed be prac­tic­ally un­der­stood as the (fac­tu­al) co-pun­ish­ment of third parties.

As pre­vi­ously men­tioned the term “third parties” in­cludes all those mem­bers of the of­fend­er’s so­cial net­work who are af­fected so­cially, psy­cho­lo­gic­ally and/or eco­nom­ic­ally by the im­pris­on­ment of the of­fend­er. At present no ex­act data ex­ists con­cern­ing just how many re­l­at­ives are af­fected in this man­ner. However, of­fi­cial Ger­man pris­on stat­ist­ics do show that throughout the course of 2004 135,002 people were im­prisoned in the Fed­er­al Re­pub­lic of Ger­many (Stat­istisches Bundes­amt, Be­st­and der Ge­fan­gen­en und Ver­wahrten in den deutschen Jus­tiz­vollzug­san­stal­ten, Stand 11. 2. 2005, S. 5). If one as­sumes that roughly one fifth of those im­prisoned are mar­ried, and in ad­di­tion takes in­to ac­count de­facto part­ners, (de­pend­ent) chil­dren and oth­er close ac­quaint­ances liv­ing with­in the com­munity, then a sub­stan­tial num­ber of in­di­vidu­als are con­cerned.

In this re­gard, it is nev­er­the­less im­port­ant to note that re­l­at­ives are not only “vic­tims”, but that they also play an im­port­ant role with­in the re­hab­il­it­at­ive pro­cess of the of­fend­er.

Thus, the im­ple­ment­a­tion of mod­ern crim­in­al sanc­tions and the car­ry­ing out of pris­on terms has been in­flu­enced by the aim of caus­ing min­im­al dis­rup­tion to the re­la­tion­ship between those in cor­rec­tion­al fa­cil­it­ies and their re­l­at­ives. Mod­ern crim­in­al sanc­tions and cor­rec­tion­al con­di­tions have in­ten­ded to con­firm this re­la­tion­ship es­pe­cially dur­ing the course of an of­fend­er’s im­pris­on­ment. As such, it was the aim of the StVollzG to en­able of­fend­ers con­fined to cor­rec­tion­al in­sti­tu­tions the abil­ity to still con­trib­ute to the live­li­hood of their re­l­at­ives (for in­stance, through the ef­fect­ive re­mu­ner­a­tion of work car­ried out in­side cor­rec­tion­al fa­cil­it­ies). Fur­ther­more, in ad­di­tion to oth­er “re­l­at­ive-friendly” ini­ti­at­ives it was also in­ten­ded that the pris­on­ers would re­ceive ac­cess to state fun­ded health in­sur­ance and pen­sion schemes. However, such re­form move­ments have failed primar­ily due to fin­an­cial reas­ons. Thus, at this point in time the StVollzG “re­l­at­ive-friendly” meas­ures are con­fined al­most ex­clus­ively to the fur­ther­ance of per­son­al con­tact for pris­on­ers and their re­l­at­ives, for ex­ample, through the in­tro­duc­tion of im­proved vis­it­a­tion rights.

Whilst crim­in­o­lo­gic­al re­search dur­ing the 1960s and 1970s primar­ily fo­cused on the rights of of­fend­ers, dur­ing more re­cent dec­ades con­ser­vat­ive polit­ic­al and sci­entif­ic re­search has shif­ted the centre of at­ten­tion away from the of­fend­er to the vic­tim. Thus the re­search con­cern­ing of­fend­ers and their sur­round­ing so­cial en­vir­on­ment has faded some­what in­to the crim­in­o­lo­gic­al back­wa­ter. It is was only in re­cent de­bates con­cern­ing the elec­tron­ic mon­it­or­ing (or “tag­ging”) of of­fend­ers that re­search con­cern­ing re­l­at­ives re­gained some im­port­ance. At an in­ter­na­tion­al level, ques­tions re­lat­ing to third parties are also once again be­gin­ning to emerge, par­tic­u­larly in coun­tries where the cor­rec­tion­al sys­tem is char­ac­ter­ized by the use of ex­ceed­ingly lengthy pris­on terms and a cor­res­pond­ing ex­pan­sion of the pris­on­er pop­u­la­tion (this is above all evid­ent in the USA).

This em­pir­ic­al pro­ject aims to ex­am­ine to what ex­tent the re­la­tion­ship between con­victed per­sons and their re­l­at­ives, es­pe­cially chil­dren, are con­sidered with­in the ju­di­cial de­cision mak­ing pro­cess in re­la­tion to the im­pris­on­ment of con­victed of­fend­ers. This ques­tion es­sen­tially con­cerns wheth­er a con­victed of­fend­er is able to have his or her sen­tence sus­pen­ded or not. A sec­ond­ary aim of the pro­ject is to ana­lyse to what ex­tent the cor­rec­tion­al in­sti­tu­tions of Baden-Württem­berg sup­port and fa­cil­it­ate con­tact between those im­prisoned and their re­l­at­ives in an at­tempt to mit­ig­ate the ef­fect of im­pris­on­ment on third parties.

The ques­tion re­gard­ing the pos­sible ex­tent to which re­l­at­ives of of­fend­ers played a role in the use of sus­pen­ded sen­tences in ac­cord­ance with § 56 StGB was ex­amined through a case file ana­lys­is. To this end, 300 crim­in­al pro­ced­ure files were se­lec­ted from the Of­fice of the Pub­lic Pro­sec­utor in Freiburg, Stut­tgart and Waldshut-Tien­gen. Of these 300 crim­in­al pro­ced­ure files, 150 con­cerned cases in which a sus­pen­ded sen­tence was is­sued. The con­trol group con­sisted of the re­main­ing 150 crim­in­al pro­ced­ure files, which all in­volved cases where the of­fend­er was im­prisoned in ab­so­lute terms.

In a sim­il­ar case file ana­lys­is the pro­ject ex­amined to what ex­tent the factor of “re­l­at­ives” and in par­tic­u­lar the factor of “chil­dren” played a role in de­term­in­ing pa­role and early re­lease in ac­cord­ance with § 57 StGB. It was also ex­amined as to wheth­er these factors had an im­pact in ac­cord­ance with StVollzG, for ex­ample, a re­lax­ing of pris­on con­di­tions and in­creased hol­i­days. To this end, 150 pris­on­er pro­ced­ur­al files were ex­amined from pris­on­ers who re­ceived pa­role dur­ing 2001 in the dis­tricts of Swa­bi­an Gmünd, Heil­bronn and Bruch­sal. These files were ran­domly se­lec­ted.

A sup­ple­ment­ary ques­tion­naire was also sent to all adult cor­rec­tion­al fa­cil­it­ies in Baden-Württem­berg. This ques­tion­naire aimed to eval­u­ate the dif­fer­ent pos­sib­il­it­ies pris­on­ers had in terms of main­tain­ing con­tact with those in the out­side world in ac­cord­ance with §§ 23-36 StVollzG and how such con­tact was ar­ranged.

The res­ults point to the fact that third parties play a very minor role in de­cid­ing wheth­er or not an of­fend­er should re­ceive a sus­pen­ded sen­tence in ac­cord­ance with § 56 StGB. In this re­gard the most im­port­ant factor is wheth­er the of­fend­er has a pri­or crim­in­al re­cord. A fur­ther in­ter­est­ing tend­ency is to be ob­served dur­ing the con­di­tion­al re­lease of the of­fend­er on pa­role in ac­cord­ance with § 57 StGB. Here the per­son­al and fam­ily situ­ation of the pris­on­er does play a role in con­nec­tion with ques­tions con­cern­ing the situ­ation of the pris­on­er upon re­lease – the so-called “Sozialer Em­pfang­s­raum” [“(lack of) so­cial sup­port after pris­on re­lease”].