Minimum Sentences in Theory and Practice

• Applicant: Benedikt Linder
• Subject Area: Criminal Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 558984394

The doctoral thesis to be described here deals with the legislative determination of sanctions and the implementation of especially high minimum penalties by courts. Although it is, according to the first examiners‘ report, a “fundamentally important, enormously broad topic”, it has so far received little scientific attention. Being located at the interface between constitutional law, substantive criminal law, criminal procedure law and sentencing law, the thesis contains numerous valuable insights not only into each of these areas, but also into their interaction and, according to the second examiners‘ report, “will certainly establish itself as a foundational work for an empirically based science of sanction law”. Based on a historico-legal and comparative study of minimum sentences in chapter 1, the thesis deals with their constitutional and sentencing implications in chapter 2, delineates the spheres of competence of the legislative and the judiciary and outlines guidelines for a sentencing law conceived as applied constitutional law. This theoretical basis is then contrasted with an “unprecedented criminal-sociological evaluation of criminal offenses [...] and the related sentencing practice”, which demonstrates a sometimes fundamental discrepancy between penalties prescribed by law and those imposed by courts. To this end, chapter 3 first contains an “impressive self-made data collection ”, which is used to evaluate the development of the absolute number and the severity of 287 penalty thresholds since 1872, before examining the reasons for the trend towards ever higher minimum sentences on the basis of selected reforms. Chapter 4 then uses three model cases to show that minimum sentences, which – from the courts' point of view – are excessive, are not imposed at all in conflictual cases. Based on this finding, chapter 5 examines profoundly multiple judicial avoidance strategies based on the case law on § 211 StGB. Chapter 6 substantiates this fact empirically by extensive examination of several statistics. The reasons for this discrepancy and the resulting problems are summarized in chapter 7 and serve as the starting point for the author's own solutions for a “way out of this dilemma”, which the first examiners‘ report praises as “particularly valuable and helpful“. The added value of the foundational work consists in the fact that “starting from a consideration that seemingly appears to be a simple and well-established concept that appears to be unspectacular at first glance - the ”minimum penalty “ – [it] develops a tour d'horizon that ultimately takes the reader through the entire criminal law, far beyond the actual law on sentencing“, and in doing so highlights the need for reform or at least discussion in almost every one of the many areas covered.

• DFG Programme: Publication Grants