The Concept of Evil in American and German Criminal Punishment

Joshua Kleinfeld, Johann Wolfgang Goethe Universitat Frankfurt am Main

Abstract

If we are adequately to explain the gap in harshness between American and German criminal punishment, we must lift the lid on a disquieting moral concept usually left under the surface of criminal theory—the concept of human evil. American criminal punishment represents a belief in the concept of human evil, while German criminal punishment represents a denial of that belief. This paper first takes up the concept of evil philosophically, locating in Hannah Arendt’s work a version of the concept that is both secular and intellectually nuanced. The paper then presents three lines of argument demonstrating the concept’s implicit role in German and American criminal punishment. First, with respect to major crime, American criminal law routinely banishes its worst criminal offenders, while German criminal law almost never does. Second, in the context of recidivism, American law punishes the person, German law the act. And third, with regard to community reintegration, American law approaches ex-cons with a concept this paper terms “residual criminality,” while German law adopts norms of full forgiveness. The paper concludes by asking which system is more just, arguing that German criminal law is naive for denying the existence of evil where it should be acknowledged, while American criminal law is reckless for rolling genuine evil together with mere error and failure and punishing them all alike.