More on crime and (lenient) punishment

If you are interested in the issues raised by the case of Wolfgang Daschner (discussed in two earlier posts), you might wish to acquaint yourself with the similar case of Alexander Holmes.

I mentioned this case in comments to the earlier of those two posts. I also mentioned that you really ought to read it. Happily, you can now do so even if you are reading afoe on your PDA and have foolishly left your leather-bound volumes of the Federal Cases at home. You’ll find the report of United States v. Holmes on the website of the State University of New York at Buffalo. The University deserves a hat-tip for making this report easily available to anybody with an internet connection. It is one of the most fascinating court reports ever written, and unlike most is also a cracking read. (And, unlike more modern reports, it records the arguments of counsel as well as the opinion of the court.)

At first blush, Holmes’s story doesn’t seem similar to Daschner’s at all. The crime for which Holmes was tried was far graver than Daschner’s. And, crucially, Holmes was not an agent of the state. Holmes’s story tells us nothing about whether torture may be justified and, if so, under what circumstances. But Holmes illustrates, even more dramatically than does Daschner, the problem faced by the state when a good man is driven to a terrible deed by overwhelming circumstances entirely beyond his control.
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Torture does not pay

As you consider the ongoing saga of US treatment of detainees at Abu Ghraib, Guantanamo and elsewhere, spare a thought for Wolfgang Daschner. As I wrote in an earlier post, Daschner, Frankfurt’s former deputy police commissioner, faced trial for threatening one Magnus G?fgen with torture. G?fgen had kidnapped young Jakob von Metzler, and the police were trying desperately to find the boy. What they didn’t know at the time was that G?fgen had murdered him very shortly after the abduction and disposed of his body in a lake.

Daschner struck me as a model of the “well-meaning torturer”. He couldn’t have known that Metzler was already dead, and was frantic to find him. But when G?fgen kept shtum, Daschner decided to use torture as an ultima ratio. Well, he didn’t actually use it; but he threatened it, and that was enough both to make G?fgen talk and to make Daschner face criminal charges. In my earlier post, I had said that, if the court found Daschner guilty,

he should be punished. I would hope that the court, in meting out a punishment, would take into account the inhumanly impossible position Daschner found himself in (and the Criminal Code does allow for significantly milder penalties for criminal coercion than a three-year prison term)…. But I cannot accept that his deed be dismissed … because he was acting in good faith and sought to achieve a desirable result.

As the S?ddeutsche reports (in German, alas), the State Court in Frankfurt has now found Daschner guilty. His punishment, though, is mild indeed.
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