Modern history



In custody after his arrest for setting fire to the Reichstag on 27-8 February 1933, the young Dutch anarchist Marinus van der Lubbe must have known that he would never leave prison alive. Hitler indeed had said as much. The culprits, he declared, would be hanged. But in saying so, he immediately ran into difficulties with the law. Hanging was the favoured method of execution in his native Austria, but not in Germany, where decapitation had been the only method used for almost a century. Moreover, the German Criminal Code did not make arson punishable by death, unless it had led to someone being killed, and nobody had died as a direct result of van der Lubbe’s deed. Brushing aside the scruples of legal advisers and bureaucrats in the Reich Justice Ministry, the cabinet persuaded President Hindenburg to issue a decree on 29 March 1933 applying the death penalty provisions of the Reichstag Fire Decree of 28 February retroactively to offences, including treason and arson, committed since 31 January, Hitler’s first full day in office. As some newspaper commentators still dared to point out, this violated a fundamental principle of the law, namely that laws should not apply punishments retroactively to crimes that had not carried them when they were committed. If the death penalty had been prescribed for arson at the time of van der Lubbe’s offence, then he might have been deterred from committing it in the first place. Now nobody committing an offence could be sure what the punishment would be.113

Hitler and Goring were not just determined to see van der Lubbe executed; they also wanted to pin the arson attack on the German Communist Party, which they had effectively outlawed on the basis of the claim that it was behind the attempt. So on 21 September 1933 it was not only van der Lubbe but also Georgi Dimitrov, the Bulgarian head of the Western European Bureau of the Communist International in Berlin, two of his staff, and the German Communist Reichstag floor leader Ernst Torgler, who stood in the dock at the Reich Court in Leipzig to answer the charges of arson and high treason. Presiding over the proceedings was the conservative judge and former People’s Party politician Wilhelm Bünger. But Bünger, for all his political prejudices, was a lawyer of the old school, and stuck to the rules. Dimitrov defended himself with ingenuity and skill, and made Hermann Goring look a complete fool when he was called to the witness box. Combining forensic ability with impassioned Communist rhetoric, Dimitrov managed to secure the acquittal of all the accused apart from van der Lubbe himself, who was guillotined shortly afterwards. Immediately rearrested by the Gestapo, the three Bulgarians were eventually expelled to the Soviet Union; Torgler survived the war, and subsequently became a Social Democrat.114

The court’s judgment was careful to conclude that the Communist Party had indeed planned the fire in order to start a revolution, and that therefore the Reichstag Fire Decree had been justified. But the evidence against Dimitrov and the other Communists, it concluded, was insufficient to justify a conviction.115 The Nazi leadership was humiliated. The Nazi daily newspaper, the Racial Observer, condemned it as a miscarriage of justice ‘that demonstrates the need for a thoroughgoing reform of our legal life, which in many ways still moves along the paths of outmoded liberalistic thought that is foreign to the people’.116

Within a few months Hitler had removed treason cases from the competence of the Reich Court and transferred them to a special People’s Court, set up on 24 April 1934. It was to deal with political offences speedily and according to National Socialist principles, and the two professional judges in charge of cases were to be assisted by three lay judges drawn from the Nazi Party, the SS, the SA and other, similar organizations. After a period of rotating chairmanship, it was presided over from June 1936 by Otto-Georg Thierack, a long-time Nazi, born in 1889, who was appointed Saxon Minister of Justice in 1933 and Vice-President of the Reich Supreme Court two years later.117 Thierack was to prove a figure of major significance in the undermining of the judicial system during the war. He introduced a new, sharply ideological note into the court’s already highly politicized proceedings.

Meanwhile, preparations had been under way for the trial of the Communist Party leader Ernst Thälmann, which would set the seal on the regime’s conviction of the Communists for trying to start a revolutionary uprising in 1933. A dossier of charges was compiled, alleging that Thälmann had planned a campaign of terror, bombing, mass poisoning and the taking of hostages. Yet the trial had to be postponed because of the lack of hard evidence. Thälmann’s high profile as the former leader of one of Germany’s major political parties ensured that over a thousand foreign journalists applied for admission to the trial. This already gave the regime pause for thought. There was a distinct possibility that Thälmann might try to turn the trial to his advantage. A death sentence had been agreed in advance. Yet the experience of the Reichstag fire trial made the Nazi leadership, above all Goebbels, wary of putting on another big show trial. So in the end the Nazi leadership considered it safer to keep Thälmann in ‘protective custody’, manacled and isolated, in the obscurity of a cell in the state prison at Moabit, in Berlin, then later in Hanover and later still in Bautzen, without a formal trial. The Communist Party made the most of his imprisonment, retaining him indefinitely in the formal position of Chairman. An attempt to spring him from gaol in 1934, by Communists dressed as SS men, was foiled at the last minute by the action of a Gestapo spy who had infiltrated himself into the rescue group. Under close observation, his correspondence with his family censored, Thälmann did not stand a chance of escape. He never came before a court, and was never formally charged with any offence. He remained in prison, the object of repeated international campaigns for his release organized by Communists and their sympathizers across the world.118

Deprived of the chance to stage a show trial of Thälmann, the People’s Court preferred initially at least to deal with less conspicuous offenders. Its aim was to judge speedily and with a minimum of rules, which in this case meant a minimum of guarantees of the rights of the defendants. In 1934 the Court passed 4 death sentences; in 1935 the figure rose to 9; in 1936, to 10; all but one of these sentences were carried out. Once Thierack had taken over in 1936, however, the People’s Court became much harsher in its approach, condemning 37 defendants to death in 1937, with 28 executions, and 17 in 1938, all but one of whom were executed.119 From 1934 to 1939, roughly 3,400 people were tried by the People’s Court; nearly all of them were Communists or Social Democrats, and those who were not executed received sentences averaging six years’ penitentiary each.120

The People’s Court stood at the apex of a whole new system of ‘Special Courts’ established to deal with political offences, often of a fairly trivial nature, such as telling jokes about the Leader. In this, as in so many other areas, the Nazis were not being particularly inventive, but drew on earlier precedents, notably the ‘People’s Courts’ set up in Bavaria during the White Terror after the defeated revolution of 1919. There was no appeal from their summary jurisdiction.121 But the People’s Court and the Special Courts had nothing like a monopoly over political cases. Nearly 2,000 people were condemned for treason between 18 March 1933 and 2 January 1934 by the regular courts; twice as many were still in remand custody at that point. They included many prominent and less prominent Communists and Social Democrats. Thus the new courts, all of which had a formal juridical status, ran alongside the courts of the established legal system, which were also engaged in dealing with political offences of many kinds. Indeed, it would be a mistake to imagine that the regular courts continued more or less unaltered by the advent of the Nazi dictatorship. They did not. Already in the first full year of Hitler’s Chancellorship, a total of 67 death sentences were passed on political offenders by all the different kinds of court combined. Capital punishment, effectively abrogated in 1928 then reintroduced, though only on a small scale, in 1930, was now applied not only to criminal murders but even more to political offences of various kinds. There were 64 executions in 1933, 79 in 1934, 94 in 1935, 68 in 1936, 106 in 1937 and 117 in 1938, the great majority of them widely publicized by garish scarlet posters that Goebbels ordered to be put up around the town where they took place. Previous ceremonial accompaniments to executions, which took place inside state prisons, were abolished, and in 1936 Hitler personally decreed that the hand-held axe, traditional in Prussia but the object of a good deal of criticism from the legal profession, including prominent Nazi jurists, should be replaced everywhere with the guillotine. 122

The death penalty was reserved above all for Communists and was applied both to activists in the ‘Red Front-Fighters’ League’ who had attracted the hostility of the Nazis in the street violence of the early 1930s and to Communist cadres who continued to try and fight the Nazis under the Third Reich, usually by doing no more than printing and spreading critical leaflets and holding supposedly secret meetings to plot the downfall of the regime. The first batch of Communists to be beheaded consisted of four young men arrested for their supposed part in the events of the Altona ‘Bloody Sunday’ in June 1932, when a number of brownshirts had been shot dead - supposedly by Communists, in reality by panicking units of the Prussian police - during a march through a heavily Communist district of the Prussian town. Condemned by a Special Court in Altona on trumped-up charges of planning an armed uprising, the four men appealed for clemency to Hermann Goring. The local state prosecutor advised him to turn the appeal down: ‘Carrying out the sentences will bring the whole seriousness of their situation graphically before the eyes of people of Communist inclinations; it will be a lasting warning for them and have a deterrent effect.’123 The sentences were duly carried out and the executions were widely publicized in the press.124 A spirit of pure revenge was what informed the decision to force forty Communists sentenced in another mass trial to witness the beheading by hand-held axe of four of their fellow ‘red marines’ in the yard of a Hamburg prison in 1934 at a ceremony also attended by brownshirts, SS men and the male relatives of Nazi activists who had died in street fighting in 1932. The defiant reaction of the Communists, who shouted political slogans and physically resisted the executioners, ensured that this would not happen again. 125


The vast majority of judges and prosecutors expressed few doubts about such acts, although one of the conservative bureaucrats in the Reich Ministry of Justice was concerned enough to make a special marginal note in the draft statistics on capital punishment that one man, beheaded on 28 September 1933, was only nineteen years of age, and international concern was expressed in a number of campaigns for clemency for condemned Communists such as the former Reichstag deputy Albert Kayser, executed on 17 December 1935. Women too were now coming under the axe, as they had not done under the Weimar Republic, starting with the Communist Emma Thieme, executed on 26 August 1933. They and others fell foul of a whole new set of capital offences, including a law of 21 March 1933 prescribing death for anyone found guilty of threatening to destroy property with the intention of causing panic, a law of 4 April 1933 applying the death penalty to acts of sabotage, a law of 13 October 1933 making the planned assassination of any state or Party official punishable by death, and another law, of 24 April 1933, perhaps the most far-reaching of all of these, laying down beheading as the punishment for anyone planning to alter the constitution or detach any part of Germany from the Reich by threat of force or conspiring to do so; thus anyone distributing leaflets (‘planning’) critical of the dictatorial political system (‘the Constitution’) could now be executed; and so too, on the basis of a law of 20 December 1934, under particular circumstances, could someone convicted of making ‘hateful’ statements, including jokes, about leading figures in the Party or the state.126

Presiding over this resumption and extension of the application of capital punishment was Reich Justice Minister Franz Gürtner, not a Nazi but a conservative who had been Bavarian Justice Minister in the 1920s and had already served as Reich Justice Minister in the cabinets of Papen and Schleicher. Like most conservatives, Gürtner applauded the crackdown on disorder in 1933 and 1934. After the ‘Night of the Long Knives’, he arranged for legislation to sanction the murders retrospectively, and nipped in the bud the attempts of some local state prosecutors to initiate proceedings against the killers. Gürtner believed in the use of written laws and procedures, however draconian, and he quickly appointed a committee to revise the Reich Criminal Code of 1871 in accordance with the new ethos of the Third Reich. As one committee member, the criminologist Edmund Mezger, put it, the aim was to create a new synthesis of ‘the principle of the individual’s responsibility to his people, and the principle of the racial improvement of the people as a whole’.127 The committee sat for many hours and produced lengthy drafts, but it was unable to keep up with the pace at which new criminal offences were being created, and the legalistic pedantry of its recommendations was wholly unwelcome to the Nazis, who never put it into effect.128

Meanwhile the judicial system was coming under growing pressure from leading Nazis, who complained, as Rudolf Hess did, about the ‘absolutely un-National Socialist tendency’ of some judicial decisions. Above all, as Reinhard Heydrich complained, the regular courts were continuing to pass sentences on ‘enemies of the state’ that were ‘too low according to the normal popular feeling’. The purpose of the law, in the eyes of the Nazis, was not to apply long-held principles of fairness and justice, but to root out the enemies of the state and to express the true racial feeling of the people. As a manifesto issued in 1936 under the name of Hans Frank, now Reich Commissioner for Justice and head of the Nazi Lawyers’ League, stated:

The judge is not placed over the citizen as a representative of the state authority, but is a member of the living community of the German people. It is not his duty to help to enforce a law superior to the national community or to impose a system of universal values. His role is to safeguard the concrete order of the racial community, to eliminate dangerous elements, to prosecute all acts harmful to the community, and to arbitrate in disagreements between members of the community. The National Socialist ideology, especially as expressed in the Party programme and in the speeches of our leader, is the basis for interpreting legal sources. 129

However harshly they sentenced Communists and other political offenders, the regular courts, judges and prosecutors were never likely to live up to this ideal, which in effect demanded the abrogation of all rules of justice and the translation of the Nazi street violence of the pre-1933 period into a principle of state.

Far from objecting to the police and SS taking offenders out of the judicial system, or complaining about the Gestapo’s habit of arresting prisoners on their release from custody and putting them straight into concentration camps, the judiciary and legal and penal administrators were happy to co-operate in this whole process of subversion of the rule of law. State prosecutors handed over offenders for confinement in the camps when they lacked the evidence to prosecute or when they could not be brought before the courts for some other reason, such as their youth. Judicial officials issued guidelines ordering prison governors to recommend dangerous inmates (especially Communists) for ‘protective custody’ on their release, which they did in thousands of cases. In one prison, in Luckau, for example, 134 out of 364 in a sample of prisoners studied by one historian were handed over to the Gestapo on completing their sentence, on the explicit recommendation of the prison administration. 130 How the practice worked was shown by the governor of the Untermassfeld prison, who wrote to the Thuringian Gestapo on 5 May 1936 about Max K., a printer who had been sentenced to two and a quarter years’ custody in June 1934 for his involvement in the Communist underground. K. had behaved well in prison, but the governor and his staff had investigated his family and connections and did not believe he had turned over a new leaf. He told the Gestapo:

K. did not attract any special attention in the institution. But in view of his past life, I cannot believe that he has changed his mind and I believe that he has, just like most leading Communists, only kept out of trouble now through cunning calculation. In my view it is absolutely essential that this active leading Communist is taken into protective custody after the end of his sentence.131

K. was in fact only a foot-soldier of the Communist movement, not one of its leaders. But the letter, sent twelve weeks before he was due to be released, had its effect, and the Gestapo were waiting for him at the prison gate when he came out on 24 July 1936: by the next day he had been delivered to a concentration camp. Some prison officials tried to stress the good conduct and reformed character of such inmates on occasion, but this had little effect where the police considered that they remained a threat. Before long, this system of prison denunciations was extended to other categories as well. Only in 1939 did the Reich Justice Ministry call for an end to explicit demands for prisoners to be taken into police custody on their release, a practice that seemed to undermine the very basis of the judicial system’s independence. This had no effect. Prison officials continued to inform the police of prisoners’ release dates, and indeed to make cells or even whole wings of state prisons available to the police to house thousands of prisoners in ‘protective custody’ without any formal process of prosecution or trial at all, and not only in the chaotic period of mass arrests in March-June 1933.132

The efforts of the judicial apparatus to preserve some degree of autonomy for itself seldom had much effect on the eventual outcome as far as offenders were concerned. Gürtner managed to block police and SS efforts to secure the transfer of prisoners to concentration camps before the end of their prison term, but he had no principled objection to their transfer at the end of it, only to the penal authorities’ formal involvement in such transfers. The constant barrage of SS criticism of judicial leniency did not lead to the dismissal or forced retirement of a single judge. The legalistic pointlessness of Gurtner’s attitude, and the hollowness of the judicial apparatus’s resistance to SS interference, were neatly illustrated by the Ministry of Justice’s campaign against the brutality of police interrogations. From the very beginning of the Third Reich, interrogation sessions by the police and the Gestapo often resulted in prisoners being returned to their prison cells beaten, bruised and badly injured to a degree that could not escape the attention of defending lawyers, relatives and friends. The Justice Ministry found these practices objectionable. They did not reflect well on the reputation of the law enforcement apparatus in Germany. After a good deal of negotiation, a compromise was found at a meeting held on 4 June 1937, when police and Justice Ministry officials agreed that such arbitrary beatings should cease. Henceforth, the meeting ruled, police interrogators were to be limited to administering twenty-five lashes to interviewees in the presence of a doctor, and they had to use a ‘standard cane’ to do so.133


The regular judicial and penal system also continued under the Third Reich to deal with ordinary, non-political crime - theft, assault, murder and so on - as well as implementing the new repression of the police state. Here too, there was a rapid expansion of capital punishment, as the new system moved to implement death sentences passed on capital offenders in the late Weimar Republic but not carried out because of uncertainty about the political situation in the early 1930s. The Nazis promised that there would be no more lengthy stays of execution while petitions for clemency were being considered. ‘The days of false and mawkish sentimentality are over’, declared a far-right newspaper with satisfaction in May 1933. By 1936, some 90 per cent of death sentences passed by the courts were being carried out. Prosecutors and courts were now encouraged to charge all homicides with murder rather than the non-capital offence of manslaughter, to reach a guilty verdict and to pass the harshest sentence, resulting in an increase of the number of murder sentences per 1,000 of the adult population from 36 in 1928-32 to 76 in 1933-7.134 Criminals, the Nazis argued, drawing on the work of criminologists over the previous few decades, and brushing aside all the qualifications and subtleties with which their central theses were surrounded, were essentially hereditary degenerates and must be treated as outcasts from the race.135

The consequences of such doctrines for ordinary offenders against the criminal law were serious in the extreme. Already under the Weimar Republic, criminologists, penal experts and police forces had reached a large degree of consensus on proposals to confine ‘habitual criminals’ indefinitely for the protection of society. On 24 November 1933, their wishes were granted with the passing of a Law against Dangerous Habitual Criminals, which allowed the courts to sentence any offender convicted of three or more criminal acts to ‘security confinement’ in a state prison after their formal sentence had been served out.136 More than 14,000 offenders had received such a sentence by October 1942. They included existing inmates of prisons recommended by prison governors for retroactive sentencing - in some prisons, as in Brandenburg penitentiary, over a third of the inmates were proposed for this treatment. These were not major or, in general, violent criminals but overwhelmingly petty offenders - bicycle thieves, pilferers, shoplifters and the like. Most of them were poor people without steady employment who had taken to stealing during the inflation and resumed it during the Depression. Typical, for example, was the case of a carter, born in 1899, who had served a large number of prison sentences for minor theft in the 1920s and early 1930s, including eleven months for stealing a bicycle and seven months for the theft of a coat. Each time he was released, he was sent out into society with a handful of marks as payment for his prison work; and with his record he could neither get a job during the Depression nor persuade the welfare authorities to give him benefits. In June 1933 he was sentenced for stealing a bell, some glue and a few other knick-knacks during a bout of drinking, and after serving out his time he was retroactively sentenced to security confinement in the Brandenburg penitentiary; he was never released. His fate was shared by many others.137

Within the prisons where they were held, conditions rapidly worsened under the Third Reich. Nazis habitually accused the Weimar prison service of being soft on criminals, pampering inmates with food and entertainment far better than they were likely to have experienced outside. This was hardly surprising, when so many of them, from Hitler and Hess to Bormann and Rosenberg, had done time under Weimar and been treated with conspicuous leniency because of their nationalist politics. In fact, conditions in Weimar’s prisons had been quite strict, and a military approach to prison life dominated many institutions.138 However, attempts had also been made to introduce a more flexible system of administration in some places, with an emphasis on education, rehabilitation and rewards for good conduct. These now came to an abrupt end, much to the relief of the majority of prison warders and administrators who had resented them from the outset. Reformist governors and senior staff were summarily sacked, and a new, harsher regime was introduced. The rapid expansion of numbers soon created further problems of hygiene, nutrition and general welfare for the prisoners. Food rations deteriorated until prisoners were complaining of weight loss and gnawing hunger. Verminous infestation and skin diseases became commoner even than they had been in the far from perfect conditions of Weimar. Hard labour was initially not a major priority, since it was thought to undermine job-creation schemes on the outside, but this policy was soon reversed, and up to 95 per cent of inmates were engaged in forced labour in many prisons by 1938. Many of the prisoners were held in specially built labour camps run by the state prison service, most notoriously on moorland clearance and cultivation in the barren North German area of the Emsland, where nearly 10,000 prisoners were engaged in back-breaking work, digging and draining the barren soil. Conditions here were worse even than in the regular state prisons, with constant beatings, whippings, deliberate attacks by warders’ dogs and even murders and shootings. Many of the guards were ex-brownshirts who had staffed the main moorland camp before the Justice Ministry took it over in 1934. Their attitude had an influence on the regular state prison staff who gradually moved in over the following years. Here, unlike in the other camps, the brutal and arbitrary conditions of the early concentration camps of 1933 continued well into the middle and late 1930s with little interference from above.139

In the regular state prisons and penitentiaries, new regulations imposed on 14 May 1934 codified local and regional changes, removed privileges and introduced novel punishments for refractory inmates. Expiation, deterrence and retribution were now the declared aims of imprisonment. Education programmes were slashed and thoroughly Nazified. Sports and games were replaced by military drill. Prisoners’ complaints were dealt with much more harshly. The long-term criminal with whom the Communist political prisoner Friedrich Schlotterbeck shared a prison cell was in no doubt about the degree to which conditions had deteriorated. As the old lag told his new cell-mate:

First of all they sawed off the backs of the forms in the eating-hall. That was supposed to be too comfortable. Spoiled us. Later on they abolished the eating-hall altogether. Sometimes there used to be a concert or a lantern-slide lecture on Sundays. There never is now. Lots of books have been taken out of the library, too . . . The food got worse. New punishments were introduced. Seven days solitary on bread and water for instance. When you’ve had that you don’t feel so good at the end of it. And then you get solitary in chains, hand and foot. But the worst is when you get chained hands and feet behind your back. You can only lie on your belly then. The rules haven’t really changed. It’s only that they’re stricter in carrying ’em out.140

Punishments, Schlotterbeck himself observed during his few years in prison, became steadily more frequent and more severe, despite the fact that most warders were old professionals rather than newly appointed Nazis. 141 Many prison officers were not satisfied with the removal of Weimar’s reforming practices. They still wanted a return to the old days of the Imperial period, when corporal punishment in prisons had been widespread. Yet their desire for a reinstatement of what they conceived of as the proper order of things in the state prisons was frustrated in many institutions by massive overcrowding. Things were not improved by the employment by 1938 of over 1,000 Nazi street-fighting veterans as assistant warders. These men were grateful for the employment but proved impossible to discipline. They were contemptuous of state authority and all too inclined to exercise casual brutality against inmates with weapons hitherto unfamiliar in the state prison system such as rubber truncheons. 142

The ‘security confined’ had a particularly hard time. They were sentenced to nine hours’ hard labour a day and subjected to strict military discipline. Since they were permanently in prison, these conditions weighed ever more heavily on them as they grew older. By 1939 more than a quarter of them were in their fifties or above. Cases of self-mutilation and attempted suicide increased rapidly. ‘I won’t do another 3 years here,’ wrote one inmate to her sister in 1937: ‘. . . I have stolen, but I will rather do myself in, my dear sister, than be buried alive for that in here.’143 New laws and greater police powers drove the number of inmates of all kinds in state prisons on an average day up by 50 per cent in 1933, until it reached a peak of 122,000 at the end of February 1937, compared to a mere 69,000 ten years earlier.144 Nazi policy towards crime was not directed by any rational attempt to reduce ordinary offences of theft and violence, although it was common to hear older Germans in the postwar years claiming that whatever Hitler’s faults, he had at least made the streets safe for the honest citizen. In fact, amnesties were declared for minor, non-political, criminal offences in August 1934 and April 1936, quashing no fewer than 720,000 prosecutions that would have led to short prison sentences or fines. This was not the kind of offender whom the Nazis were interested in pursuing. So-called habitual criminals, however, were not included in such amnesties, a further indication of the arbitrariness of Nazi penal practice.145

Meanwhile large numbers of new offences were created by a series of new laws and decrees, some of them with retroactive effect. They were designed not least to serve the ideological and propaganda interests of the regime. Thus, for instance, in 1938, Hitler ordered a new law making highway robbery on a motorway retroactively punishable by death after two men had been found guilty of this offence in 1938 and sentenced to a term of imprisonment. They were duly sent to the guillotine.146 Offences of all kinds were given a political or ideological slant, so that even pilfering or picking pockets became evidence of hereditary degeneracy, and vaguely defined activities such as ‘grumbling’ or ‘idling’ became grounds for indefinite imprisonment. Punishments increasingly no longer fitted the crime, but were designed to assert the supposed collective interest of the ‘racial community’ in the face of deviance from the norms set by the Nazis. Whole categories of people were increasingly defined by police, prosecutors and courts as inherently criminal and caught up in their thousands in the process of arbitrary arrest and confinement without trial.

Deviant and marginal, but hitherto socially more or less tolerated, professions like prostitution also began to be defined as ‘asocial’ and subject to the same sanctions. Vague and wide-ranging laws and decrees gave the police almost limitless powers of arrest and detention, virtually at will, while the courts did not lag far behind in applying the policies of repression and control, for all the regime’s continual attacks on them for their supposed leniency. All this was cheered on, with only small and often quite technical reservations, by considerable numbers of criminologists, penal specialists, lawyers, judges, and professional experts of one kind and another - men like the criminologist Professor Edmund Mezger, a member of the committee charged with preparing a new Criminal Code, who declared in a textbook published in 1933 that the aim of penal policy was ‘the elimination from the racial community of elements which damage the people and the race’.147 As Mezger’s phrase indicated, crime, deviance, and political opposition were all aspects of the same phenomenon for the Nazis, the problem, as they put it, of ‘community aliens’ (Gemeinschaftsfremde), people who for whatever reason were not ‘racial comrades’ (Volksgenossen) and therefore one way or another had to be removed from society by force. A leading police expert of the period, Paul Werner, summed this up in 1939 when he declared that only those who completely integrated themselves into the ‘racial community’ could be given the full rights of a member; anyone who was just merely ‘indifferent’ towards it was acting ‘from a criminal or asocial mentality’ and was thus a ‘criminal enemy of the state’, to be ‘combatted and brought down’ by the police.148

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