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.
Daschner was sentenced to a Geldstrafe, or ‘monetary punishment’. (Note that a Geldstrafe is a criminal penalty that may be imposed only upon conviction; it is not a mere fine). And the court made Daschner’s penalty subject to probation; if he keeps his nose clean (as there is every reason to think he will), he will not in fact have to pay. The amount of the punishment is ?10,800 (or, under the complicated German system, 90 daily units at ?120 per day, the amount of each daily unit being set in accordance with the defendant’s income). The choice of 90 daily units is important. Had it been more (in normal circumstances, it can be up to 360), Daschner would thereafter have had the status of a Vorbestrafter, an ‘ex-con’. At 90 days, he won’t.
Daschner’s defence had, understandably, pleaded for a verdict of ‘not guilty’. Even the prosecution, however, had asked the court to impose only a monetary punishment (though they’d asked for more than twice as much), and had requested that the penalty be on probation, on the grounds of the ‘massively mitigating circumstances’ in this case.
Things could hardly have turned out better for Daschner. This was about the mildest possible penalty the court could have imposed. For a while there, it looked as though Daschner might have had to reckon with worse. A number of journalists suggested that Daschner had not in fact exhausted all other possibilities before communicating the threat of torture. For example, Metzler’s sister was on hand at the police station where G?fgen was being interrogated, and volunteered to confront him. (G?fgen was an acquaintance of the von Metzler family, and had been friendly with Jakob’s older siblings.) In the event, Daschner did not send her in to face G?fgen. If he failed to do that, asked the journalists, then surely he hadn’t tried everything legitimate before threatening torture. I am glad that the court appears not to have been swayed by this thinking. It is easy to be the hurler on the ditch. It’s more difficult for the police officer who must make the decisions in the real world. Perhaps his considered judgement was that confronting G?fgen with Metzler’s sister would not have worked. Perhaps he thought it unacceptable to put her in such a position, for all her apparent willingness. Who knows — perhaps sending the woman into the interrogation room would have been the best decision. But we cannot, I think, fairly demand that policemen (or anybody else) always make 100% optimal decisions. We can demand that they make the best decisions they can according to their lights, after exercising the care and judgement one would reasonably expect from somebody in their position. And I think that is exactly what Daschner did.
As the S?ddeutsche noted, the only better outcome for Daschner could have been a decision by the court to ‘suspend proceedings, subject to conditions’ pursuant to ? 153a of the Code of Criminal Procedure — i.e., dropped the matter in exchange for (say) a donation to some charitable organisation. In fact, this happens fairly often. Before a formal charge is made, the prosecutor’s office may do it with the consent of court and defendant; if the prosecution has already charged the defendant, the court may do so (again, subject to the prosecution’s and the defendant’s consent). Suspension of proceedings is permissible if the conditions imposed on the defendant render moot the public’s interest in prosecution and if the defendant’s guilt (assuming it proven) would not be sufficiently severe to make the measure inappropriate. (Suspension on conditions is available only in the case of misdemeanours, not felonies. A felony is anything with a minimum punishment of one year’s imprisonment. Criminal coercion, the crime with which Daschner was charged, carries a maximum tariff of three years, but the sentence may be less than one year, so it is a misdemeanour.)
I think it right that the court did not opt to suspend the proceedings. Seen in vacuo, what Daschner did wasn’t all that terrible. He threatened to have somebody roughed up a little (he had specified ‘pain, but no injury’) unless that person coughed up some information. If Daschner were a private person whose car had been stolen, and he told the thief he’d slap him around a bit unless the thief revealed where the car was hidden, perhaps The People In Its Majesty would be satisfied to see the charges dropped if Daschner agreed to donate a sum to the Home for Battered Thieves and take an anger-management course. But Daschner was not a private person; he was a very high-ranking officer of the police. And, in investigating a terrible crime, he was making use of the state’s monopoly on the legitimate use of force. But he used (or threatened to use) force in a way that this state deems illegitimate, even when it is the agent. When a state accepts that is bound by the rule of law, it is important that it police itself carefully (no pun intended).
But I also think it right that the court was mild in its chastisement. The court having found that Daschner was guilty of threatening torture, it is right and important that the state formally reprove him by imposing a penalty. But given the extreme circumstances in which Daschner found himself, and the unquestionably good ends to which he applied his unquestionably bad means, it is also right and important that the state be lenient.