Some Comments on Parts III and IV of the Model Penal Code from a German Perspective: Fundamentals of the Statutory Regulation of Correctional Practice in Germany

Abstract

As is the case in the United States today, only the basics of the legal position of inmates were regulated by statute in Germany pre-1976. According to both case law and academic writing, a conviction, which was properly based on the criminal and criminal procedure codes, provided a sufficient basis for the limitation of the rights of inmates. This was predicated on the view that a conviction established a special relationship of subordination, the extent of which could be defined more precisely by the correctional authorities using their own discretion. In 1972, the German Constitutional Court handed down a now famous decision which held this state of affairs to be unconstitutional. Any limitations on the fundamental rights of inmates, which were consistently and comprehensively imposed, had to be regulated comprehensively, and in detail, by the legislature. Hence, the enacting of a Correctional Code was mandated by the Constitution. The legislature was forced to enact the Correctional Code in 1976. In more than 200 sections, the law regulates in detail every aspect of imprisonment and