The Third Reich in Power

by Evans, Richard J.

  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

  I I

  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 conce
ntration 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

  III

  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 Nazifi
ed. 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