Judges and the death penalty in Nazi Germany: New research evidence on judicial discretion in authoritarian states

Do judicial courts in authoritarian regimes act as puppets for the interests of a repressive state – or do judges act with greater independence? How much do judges draw on their political and ideological affiliations when imposing the death sentence?

A study of Nazi Germany’s notorious People’s Court, recently published in the Economic Journal, reveals direct empirical evidence of how the judiciary in one of the world’s most notoriously politicised courts were influenced in their life-and-death decisions.

The research provides important empirical evidence that the political and ideological affiliations of judges do come into play – a finding that has applications for modern authoritarian regimes and also for democracies that administer the death penalty.

The research team – Dr Wayne Geerling (University of Arizona), Prof Gary Magee, Prof Russell Smyth, and Dr Vinod Mishra (Monash Business School) – explore the factors influencing the likelihood of imposing the death sentence in Nazi Germany for crimes against the state – treason and high treason.

The authors examine data compiled from official records of individuals charged with treason and high treason who appeared before the People’s Courts up to the end of the Second World War.

Established by the Nazis in 1934 to hear cases of serious political offences, the People’s Courts have been vilified as ‘blood tribunals’ in which judges meted out pre-determined sentences.

But in recent years, while not contending that the People’s Court judgments were impartial or that its judges were not subservient to the wishes of the regime, a more nuanced assessment has emerged.

For the first time, the new study presents direct empirical evidence of the reasons behind the use of judicial discretion and why some judges appeared more willing to implement the will of the state than others.

The researchers find that judges with a deeper ideological commitment to Nazi values – typified by being members of the Alte Kampfer (‘Old Fighters’ or early members of the Nazi party) – were indeed more likely to impose the death penalty than those who did not share it.

These judges were more likely to hand down death penalties to members of the most organised opposition groups, those involved in violent resistance against the state and ‘defendants with characteristics repellent to core Nazi beliefs’:

‘The Alte Kampfer were thus more likely to sentence devout Roman Catholics (24.7 percentage points), defendants with partial Jewish ancestry (34.8 percentage points), juveniles (23.4 percentage points), the unemployed (4.9 percentage points) and foreigners (42.3 percentage points) to death.’

Judges who became adults during two distinct historical periods (the Revolution of 1918-19 and the period of hyperinflation from June 1921 to January 1924), which may have shaped these judges’ views with respect to Nazism, were more likely to impose the death sentence.

 Alte Kampfer members whose hometown or suburb lay near a centre of the Revolution of 1918-19 were more likely to sentence a defendant to death.

Previous economic research on sentencing in capital cases has focused mainly on gender and racial disparities, typically in the United States. But the understanding of what determines whether courts in modern authoritarian regimes outside the United States impose the death penalty is scant. By studying a politicised court in an historically important authoritarian state, the authors of the new study shed light on sentencing more generally in authoritarian states.

The findings are important because they provide insights into the practical realities of judicial empowerment by providing rare empirical evidence on how the exercise of judicial discretion in authoritarian states is reflected in sentencing outcomes.

To contact the authors:
Russell Smyth (russell.smyth@monash.edu)