Eras Journal – Geerling, W: “Protecting the National Community From Juvenile Delinquency”
Protecting the National Community From Juvenile Delinquency: Nazification of Juvenile Criminal Law in the Third Reich
On 28 August 1942, large red advertising placards were circulated throughout the city of Hamburg with the following message:
Announcement: ‘The seventeen-year-old Helmuth Hübener from Hamburg, sentenced to death and deprival of his civil rights during his lifetime by the People’s Court on 11 August 1942 for conspiracy to commit high treason and treasonable support of the enemy, has been executed today.’
The verdict read:
The defendant was aware of the danger of his propaganda and of the reasons for it. Therefore the death penalty, which is compellingly prescribed, must be imposed on him…In the event of a choice between death and imprisonment, the decision could only have been rendered for the death penalty, because the gravity and danger of the deed and the need to protect the people require it, despite the fact that the defendant is a juvenile. 
This judgment was consistent with the sentiments of a speech given by Hitler before the Reichstag on the occasion of the passage of the Enabling Law on 23 March 1933:
Our legal system must, in the first place, serve to maintain this national community…The nation rather than the individual must be regarded as the centre of legal concern. High treason must in future be ruthlessly exterminated. The basis of the existence of the judicial system cannot be other than the basis of the nation’s existence. 
Helmuth Hübener was one of 1,192 people sentenced to death by the People’s Court in 1942.  Hübener was the ringleader of a resistance group based in Hamburg which used text from BBC news reports as a medium for the production and distribution of subversive leaflets. In a period of six months this group of four juveniles was able to produce twenty ‘inflammatory leaflets’ in which they highlighted the inaccuracy of Nazi war reports, the criminality of leading Nazis such as Hitler and Goebbels, the futility of the war and the impending military defeat and then distribute them throughout the entire city of Hamburg.  The significance of Hübener’s execution lay in the fact that he was the first juvenile to be put to death for violating the Decree Concerning Extraordinary Radio Measures. Several pleas were made to the German Chancellery to grant clemency to Hübener and commute his sentence to life imprisonment. Among those appealing were Hübener’s mother, his lawyers and even the Berlin Gestapo. The Gestapo sent a letter to the Attorney General at the People’s Court in which it was conceded: “His [Hübener’s] open confession at the first police interrogation is evidence that, despite his severe criminal offence, he was still morally uncorrupted.”  The Reich Youth Leadership opposed the plea on the grounds that “The gravity of Hübener’s crime and the danger that the strength of resistance of the people in the war could be adversely affected by his crime, make the execution of the death sentence against Hübener necessary.” On 15 October 1942, the Ministry of Justice upheld the original verdict and set the date of execution for 27 October 1942. Hübener was first informed of this decision at 1:05 p.m. on the day of execution and beheaded at Plötzensee at 8:13 p.m. 
Despite the wealth of primary and secondary source literature dealing with the themes of youth resistance, non-conformity, opposition and dissent in the Third Reich, historians have shown little inclination to explore the issue ofJugendstrafrecht (juvenile criminal law) during the Third Reich.  Jörg Wolff’s Jugendliche vor Gericht im Dritten Reich (Juveniles before the Court in the Third Reich), published in 1992, is possibly the only in-depth study of the legal basis behind the state policy towards juvenile delinquency.
In line with the Wolff thesis, this article will show that the transformation of juvenile criminal law in this period represented a Nazification of the law in so far as the political intentions of the state shaped the legal reforms. Reform was dominated by three key ideological considerations: racial-eugenic theories, protection of the national community and juvenile delinquency.
When the Nazis came to power in 1933, the Juvenile Court Law (Jugendgerichtsgesetz ) of 1923 governed juvenile criminal behaviour. Under Section 1, a juvenile offender was defined as being under eighteen, either at the time of the crime/s or at the time of the trial. Before 1933, juveniles were afforded some protection under the law. Juveniles could not be sentenced to death or to terms in penitentiary; those aged under fourteen could not be prosecuted for a criminal offence, while the prerequisite for criminal accountability (Zurechnungsfähigkeit) – soundness of mind or capacity for penal responsibility – could only be applied under certain conditions to juveniles aged at least fourteen. Section 16 of the JGG demanded that juvenile education be an aim of penal enforcement and that juveniles be separated from adults.
In November 1943, Georg Thierack, former President of the People’s Court and current Reich Minister of Justice, praised the newly promulgated Federal Juvenile Court Law (Reichsjugendgerichtsgesetz ), describing it as “a living expression of National Socialist legal will and the principles of National Socialist education.”
 The RJGG marked the culmination of Nazi reform to juvenile criminal law in so far as the political intentions of the Nazi state shaped the legal reforms. This code was presented as a modern criminal law and was markedly different to the JGG in many respects, including age of discretion, jurisdiction of cases and sentencing. Juvenile offenders as young as twelve could be prosecuted in ‘exceptional cases’. If the character of the culprit indicated that he or she would develop into a criminal, then prosecution on account of ‘healthy sentiment’ would become necessary. Paragraph 1 of Section 20 of the same decree provided for the transfer of juveniles to an adult court if the juvenile had moral and intellectual faculties comparable to an eighteen-year-old and healthy sentiment required this action because of the “particularly wicked character of the perpetrator and because of the seriousness of the deed.” In cases where the above condition could not be met, transfer was still possible if the personality of the perpetrator and the nature of the act showed “that the juvenile was a major criminal of a degenerate character and the protection of the people demands such treatment.” 
Every prevailing protective measure which the Nazis believed hindered attempts to eradicate juvenile criminality was removed. Legal norms were replaced with elastic National Socialist concepts such as “healthy sentiment of the people”, “protecting the home front from internal and external enemies” and “elimination of all traitors from the national community”, the judicial interpretation of which reflected the political intentions of the state. “A decisive characteristic of National Socialist theory was that emphasis was placed less on the act committed than on the criminal personality”, writes Ingo Müller. 
Racial/biological considerations were paramount in directing the scope of legal reform in every sphere of Nazi Germany. As Michael Burleigh and Wolfgang Wippermann note:
Racialism became the official doctrine and policy of the Nazi state. Notwithstanding marked differences in the theoretical content of the racism avowed by the regime’s individual agencies, the object was to create a utopian society organised in accordance with the principles of race. A key concern in this endeavour was the ‘purification of the body of the nation’ from ‘alien’, ‘hereditary ill’, or ‘asocial’ ‘elements’. Racial ‘purification’ was an integral part of wider ‘social’ policies designed to create a ‘healthy’, performance-orientated, ‘Aryan’ ‘national community’. 
The legal system was quickly subordinated for this purpose. Piece by piece, the Nazis dismantled what was left of Weimar democracy. The Reichstag Fire Decree of 28 February 1933 and the Enabling Act of 23 March 1933 were the first steps in the consolidation of the Nazi dictatorship. The last remnants of Weimar democracy died along with President Paul von Hindenburg in August 1934.
The Nazis wasted little time in taking full advantage of these unrestricted powers. Jews, politically unreliable elements, the racially and mentally inferior, asocial criminal elements and juvenile delinquents were classified according to Nazi racial/biological examinations and then subjected to various forms of Nazi persecution in the name of cleansing the Aryan body.
Rudolf Huber, Professor of Jurisprudence at Kiel and expert on law in Nazi Germany, defined the völkisch concept of law:
The law itself is nothing other than the expression of the communal order in which the people live and which derives from the Führer…The Führer law makes concrete the unwritten principles of the völkischcommunal life…The civil rights of the individual vis-à-vis the state are incompatible with the principle ofvölkisch law. There is no personal freedom of the individual prior to the state and outside the state which the state is obliged to respect.
Carl Schmitt, one of the most prominent legal thinkers in the Weimar and National Socialist periods, asserted that the primary aim of criminal law was “to protect the community of the Volk from criminals.” Writing in Deutsche Juristen-Zeitung in 1934, he stated an axiom of National Socialist legal thinking: “Today everyone will recognise that the maxim ‘No crime without punishment’ takes priority over the maxim ‘No punishment without law’ as the higher and stronger legal truth.”
National Socialist criminal law was never designed “to protect the rights of the individual against the state…but rather to protect the state from the individual.” “Protective law” aimed to “purge society of inferior individuals” and emphasised that “the particular obligation of criminal law is to the negative, defensive side of protection. Its ultimate function is to exterminate.” This was directed at degenerate criminals, opponents of the regime and juvenile delinquents.
In a Reichstag session to commemorate the proclamation of the JGG in 1923, the following account of juvenile delinquency in the First World War was provided:
In the main, the delinquency of youth leads back to a lack of the necessary education during the long war years. Fathers and guardians were called up into the army. Many mothers did not have the sufficient time to look after their children on account of the economic necessity. Frequently, schools had to be closed for weeks and months. Youth had to enter working life earlier than otherwise. With insufficient observation and often with substantial funds procured from their own activities, many juveniles, especially in the larger cities, were led into temptation and on the path to crime. The reason for the delinquency lay in a deficiency of education, so it is now imperative to place the thought of education in the foreground.
As the above statement proves, juvenile delinquency was on the government’s agenda in Weimar. The description of juvenile delinquency above was virtually identical to that in the Second World War, the essential differences lay in the conclusions drawn and the methods used to combat the problem. In the Third Reich the image of juvenile delinquency was dominated by ideological considerations and suppressed through the collaboration of the SS, police, Hitler Youth Patrol Duties and the courts. The use of education measures was restricted and modified in accordance with National Socialist ideology.
Upon the outbreak of war in 1939, the fear of juvenile delinquency was widespread. In 1940, Herbert Vornefeld, a leading official in the Reich Youth Leadership wrote “the delinquency of juveniles during the [First] World War is still in the memory of all.” Police were given greater powers and imposed stricter controls over juvenile behaviour. The danger that juvenile delinquency posed to the regime during the war was a central issue in driving reform. In 1940, Professor Boldt wrote:
That circumstance [juvenile delinquency] shows the reprehensibility of the insight, that special forms of war mentality, at least with young people, need not only to be fought with the strongest weapons of punishment, but at the same time and in different ways, can and must be met with other means of correction.
The Nazification of juvenile criminal law in the period 1933-1945, culminating in the adoption of the RJGG, was by no means self evident in 1933. There was no pre-conceived plan as to how, and through what measures, juvenile criminal law would change. The SS, the Ministry of Justice, the police, the leadership of the Hitler Youth and the German legal fraternity all wished to strengthen their power base with Hitler and sought to influence the direction of change. In this climate of in-fighting, and given Hitler’s preference for the division of power and duplication of tasks, reform plans came from many competing authorities, often outside the legal system, ad hoc and spontaneous in application and subject at all times to the arbitrary influence of Hitler.
There were two distinct phases of legal reform. In the pre-war period very few initiatives directly affected juveniles, although many new crimes were created and the list of political crimes was expanded. When the war began, juveniles were still being sentenced according to the JGG. During the war, change was radical and rapid, involving the introduction of new terms and measures and the use of the most severe forms of punishment to combat juvenile cliques, homosexuals, asocials and petty criminals.
The pre-war years were dominated by discussions, proposals and rejections. Change was gradual and took place behind the scenes, primarily through meetings of legal bodies and various working committees.  The most significant development occurred in the reorganisation of juvenile criminal law along racial-biological lines and the adoption of new Nazi-specific legal terms such as Tätertyp(perpetrator types) and Volksschädlinge (national parasites). The identification of likely perpetrator types, parasites and asocials was an essential aspect of the Nazi approach to criminality: a non-specific label, which could be applied to different groups of people and used if necessary to eradicate them from the community. The association of juvenile criminality with such terms and the consideration of measures such as juvenile detention, indefinite sentences, penitentiary and execution reflected the increasing harshness of juvenile criminal law and were typical of the Nazi belief that criminals, irrespective of their age, were not deserving of protection under the law.
Like many other Nazi initiatives, the introduction and extension of racial and eugenic theories into medicine and law drew on a wealth of existing literature and contemporary examples. Racial and eugenic theories shared common origins in biological theories of the late nineteenth century and a common perspective in viewing humankind primarily in biological terms.”Individuals were not seen as possessing validity in themselves as human beings and were not judged in terms of their human qualities, but their significance was assessed first and foremost in terms of their physical and mental efficiency as members of a race and they were seen primarily as collections of good or bad genes”, writes Jeremy Noakes in “Social Outcasts in the Third Reich”. 
On 14 July 1933, a law was introduced in Germany which ordered sterilisation.
Having set up an utopian model of an ideologically and racially homogenous ‘national community’, the Nazis increasingly sought an explanation for deviance from its norms not in terms of flaws within the system itself and its incompatibility with human variety, but rather in terms of flaws which were innate within the individual. 
In October 1938, Hans Frank, head of the Nazi Lawyers Association and of the German Academy for Law, explained the concept of the ‘degenerate asocial’ whose deviance was biologically determined: “To us National Socialists, criminal biology, or the theory of congenital criminality, connotes a link between racial decadence and criminal manifestations. The complete degenerate lacks all racial sensitivity and sees it as his positive duty to harm the community or members there of.” 
In an article entitled, “Die rassebiologische Aufgabe bei der Neugestaltung des Jugendstrafrechts” (The racial-biological task involved in the reform of Juvenile Criminal Law), published in 1939, Dr Roland Freisler, Under Secretary in the Ministry of Justice, argued that “racially foreign, racially degenerate, racially incurable or seriously defective juveniles” should be sent to juvenile centres or correctional education centres and be segregated from those who are “German and racially valuable.”
In line with this view, the German Central Agency for the Struggle Against Juvenile Delinquency was set up, and in August 1940 it established a Youth Custody Camp in Moringen. A similar camp for girls was opened at Uckermark in January 1942. Both were regarded as institutions of youth protection and were originally established for the detention of criminal and asocial juveniles according to racial-biological criteria.  In theory, the permission of a Guardianship Judge or Juvenile Court Judge was required before a juvenile could be sent to a protective camp. In practice, the police did not wait on a lawful order or a decision from the juvenile administration.
Moringen became a testing ground for Dr Robert Ritter, previously in charge of the criminal-biological registration and selection of gypsies and gypsy mixed bloods and now given the responsibility of finding a solution to the juvenile asocial question. After a biological and racial examination, juveniles were divided into groups according to their alleged socio-biological character and suitability for reform. Those who showed a favourable inclination towards ‘re-education’ were kept in E-Block (away from others) and sent to the front upon reaching their eighteenth birthday (after their sentence was complete).  Juveniles whose capacity to be ‘re-educated’ remained questionable were segregated from others in F-Block; trouble-makers were housed in S-Block, while those unsuitable or unfit for education (U-Block) were forcibly sterilised and sent to adult concentration camps on their eighteenth birthday.
The outbreak of war in September 1939 radicalised German society. The absence of father figures at home and the associated fear of juvenile delinquency concerned a regime fixated on criminality and asocial behaviour. The Decree for Protection against Juvenile Felons (Verordnung zum Schutz gegen jugendliche Schwerverbrecher ), of 4 September 1939 was the only decree passed in the last months of 1939 that specifically targeted juveniles, reducing the level of protection afforded to juveniles under the JGG and exposing more juveniles to trial before the law as adults. Writing in the Akademie für Deutsches Reich (Academy for German Law) in 1940, Edmund Mezger succinctly clarified the main theme of the Juvenile Felons Decree:
This [decree] touches on one of the most problematical and burning criminal-political questions of today: the distinction between the racially valuable juveniles, whose derailment possesses no further importance for his or her future development (the type for which the JGG was created) and the future felon, whose criminality as we recognize today, begins extraordinarily often in early childhood. 
Freisler introduced the concept of ‘precocious juvenile criminal’ in this decree, though this notion, as the antithesis to the immature juvenile, was not new, having appeared in German legal discourse as early as 1905.  According to paragraph 2, Section 1 of the Juvenile Felons Decree, juveniles above sixteen should be regarded as adults if it could be proved that “the culprit possessed the intellectual and moral development of an eighteen-year-old” and “the action showed heinous criminal intent” or that prosecution of the juvenile as an adult was “required for the protection of the people.”  Before this act, a juvenile could only be sentenced before a juvenile court, although in exceptional cases it was permissible to try juveniles before a Special Court or the People’s Court. 
The Juvenile Felons Decree provided the legal basis for imposing the death penalty and penitentiary terms on juveniles for the first time in German legal history.  In the period 1933 through 1945, the courts sentenced at least seventy-two German juveniles to death and 263 to terms in penitentiary. Before this time, the maximum sentence for a juvenile permissible under German law was ten years in an adult prison. The introduction of the legislation was characteristic of the polycratic nature of the Nazi state. Without consulting the Academy of German Law, the Reich Youth Leadership requested the introduction of the death penalty in a new juvenile criminal code in the autumn of 1939. At the same time, Hitler personally ordered the death penalty against the seventeen-year-old Walter Wolf, who robbed and murdered his corrections officer.
The Decree against National Parasites (Verordnung gegen Volksschädlinge) introduced the term perpetrator type, which was used in combination with another Nazi term, parasite. The adoption of racial biological terminology portrayed juvenile criminality as parasitic, implying the need for harsher sentences to remove the undesirable element from the community. Freisler justified the new measures in the following manner: “In times of war, breach of loyalty and baseness cannot find any leniency and must be met with the full force of the law.” As Jörg Wolff observed in his study of juveniles before the courts in the Third Reich, “[i]n all cases [subject to the Decree against National Parasites], penitentiary sentences or death was threatened, which could be carried out by hanging in order to brand the culprit as dishonourable.” 
The laws against juvenile felons and national parasites were followed up with the Police Decree for the Protection of Youth (Polizeiliche Verordnung zum Schutz der Jugend), of 9 March 1940, which restricted the movement of juveniles and tried to curb the increasing incidence of petty theft and sexual offences. People under eighteen were prohibited from consuming alcohol, smoking, loitering on the streets or public places after dark. Sexual relations between juveniles were associated with depravity, homosexuality, asocial behaviour and criminality.  These measures reflected growing anxiety about juvenile delinquency. According to Wolff, “[o]n one hand the notion of moral and intellectual immaturity remained, yet the notion of a criminal who was an enemy of the state was propagated, a type for whom educational influence was senseless and in vain, from which the community had to be protected.”
To deal with these problems, a new means of correction – juvenile detention – was introduced through two decrees passed on 4 October and 28 November 1940.  The initial decree introduced detention as a new legal term alongside punishment and education measures and prescribed detention in place of prison sentences of less than one month and fines.  According to the provisions, judges in Juvenile Courts, Hitler Youth leaders and the police could sentence young offenders to a maximum of four weeks custody, but in reality the courts played little role in its imposition. Detention was usually implemented by the Hitler Youth as a punishment for breaches of discipline by its members. 
“Detention is a means of correction”, wrote Freisler. “Detention will be imposed when the judge does not perceive a term of imprisonment as appropriate, though the juvenile needs a bit of a wake up call and must be made aware of his or her adverse behaviour towards the community…the means of detention would suffice to achieve the goal of education, though the seriousness of the crime requires atonement through a sentence of imprisonment.” In reality, detention stood somewhere between imprisonment and education measures: “It is neither imprisonment with its criminal consequences (re-offending, criminal records and so on), nor an education measure in the sense of the Juvenile Court Law.”
The initial codification was followed by a second law in November 1940, which set up specific categories of detention: weekend incarceration (one to four weekends), deprivation of freedom (one week to a month) and short-term arrest (twenty-four to forty-eight hours). Any juvenile sentenced to weekend detention remained in isolation and received only bread and water, though on the morning of release and in special cases, warm soup was permitted for lunch. Only visits of an educational or health-related nature were permitted.  Every juvenile was expected to perform a standard eight-hour working day throughout his or her sentence, usually undertaking agricultural and gardening duties, or light industrial or craft work. 
In determining the suitability of an individual for detention, there was less emphasis placed on the crime than on the personality of the culprit. In a speech presented before the German Academy for Law to commemorate the initial legislation in November 1940, Reich Youth Leader Arthur Axmann excluded certain groups of juveniles: “those who cannot be educated, are difficult to educate or hereditarily inferior do not belong in reform school.” Detention was an ideal remedy to counter juvenile delinquency as it could be directed against the racially and biologically pure, yet careless, reckless or naïve German youth.
Indefinite sentences had a long legal history in Germany, having first appeared in 1532. It was only during the nineteenth century, along with the promotion of civil liberties, that definite sentences were pronounced more frequently, leading to the elimination of indefinite sentences in Germany by the second half of the nineteenth century. Attempts to reintroduce this measure in Germany after World War One as a “preventive punishment against recidivist criminals and as an educational sentence for juvenile prisoners capable of education”, failed because of the legal certainty surrounding the injustice of such sentences. Nevertheless, Austria adopted indefinite sentence legislation in 1928. Indefinite sentences were not mentioned in the JGG of 1923.
The issue of indefinite sentences was only seriously taken up after 1937. Two commissions were set up at this time to investigate the possibility of using indefinite sentences against recidivist criminals and as a correctional reform punishment for those considered corrigible. Writing in 1938, Professor Sieverts argued that a new approach to criminology was needed, one based on criminality arising from upbringing and hereditary factors. The problem of youth criminality should no longer “end with the point of view of diminished criminal responsibility for juvenile lawbreakers and the corresponding mitigating circumstances”. “Early criminality” is “recognised today as the central problem of modern criminality”; therefore the future juvenile criminal law “must be expanded into a law in the struggle against early criminality.” 
At a conference in Goslar, held in January 1941, a working committee comprising members of the German Academy for Law, Reich Youth Leadership and the Ministry of Justice pledged to lay down principles concerning the question of indefinite sentences.  By the end of the year, two significant decrees were adopted. The first governed the usage of indefinite sentencing; the second excluded Polish juveniles from its application, in accordance with prevailing views of racial inferiority, which demanded that Slavs, Jews and other non-Aryan groups be placed outside the application of Juvenile Criminal law.
An indefinite sentence in a juvenile prison was designed to serve three purposes: atonement for the crime, education of the juvenile before possible reintegration into the national community and protection of the people.  It was aimed at potential juvenile recidivists and felons, i.e. juveniles who had erred on account of behavioural problems associated with puberty, stupidity or carelessness, but who needed saving in view of their harmful tendencies. Those suitable for re-education were sent to juvenile prisons to remove the criminal instinct. 
The legal guidelines stated that a minimum of nine months and a maximum of four years must be imposed if the judge could not prescribe in advance the period of imprisonment needed for education purposes before reincorporating the juvenile back into the community, providing the culprit possessed “harmful tendencies.” The precise nature of the ‘harmful tendencies’ did not need to be defined, “providing the danger existed that without special education in a penal institution for an indefinite period, the juvenile would not become a respectable citizen of the community and would probably commit further punishable offences.” A further decree from the Ministry of Justice, dated 6 January 1942, permitted a judge to order a criminal-biological investigation (maximum period of six months) for any juvenile sentenced to an indefinite period.
Once sent to a juvenile prison, a defendant would remain there until he or she had become mature for the community and shown a strengthening of character. The key factors of education were work, discipline and order. Discharge was in the hands of the police.  Those fortunate enough to be released were forbidden to inform anyone of their experience upon the threat of being arrested and incarcerated again and were forced to sign a statement confirming that they had been incarcerated for ‘educational purposes’ and treated well. A juvenile who had reached adulthood while in custody but was not ready for reintegration into the community upon completion of his/her term was sent to an adult prison facility, while minors who remained a threat to the community were placed in police protective custody or transported by police to juvenile custody camps.
The RJGG was not only the zenith of National Socialist reform to juvenile criminal law, but also the single code that governed juvenile criminal law across the entire Reich. With the passing of this code, a series of different laws that had been introduced over the preceding years were brought into harmony with one another. The process of developing a new JGG had not been taken up until 1938, and until the outbreak of the war, the JGG was left essentially unchanged from 1923. The Juvenile Felons Decree paved the way for harsher sanctions and lowered the age of discretion, while the first significant attempts to reorganise juvenile criminal law arrived with the introduction of juvenile detention in 1940 and then indefinite sentences, a year later.
Only minor changes were made to the prescription of indefinite sentences and juvenile detention.  The criminal-biological guidelines stipulated in the Indefinite Sentences Decree of January 1942 were clarified and expanded upon in Section 28 under the heading: Persönlichkeitsforschung (research of the personality). Paragraph 1 provided an overview of this investigation: the Chief Public Prosecutor and judge had a period of six weeks to clearly assess the moral, mental and physical characteristics of the juvenile. According to the principles of paragraph 3:
A medical examination is recommended, when the suspicion exists that the crime is linked to a mental or emotional disorder, or if one is imminent; when signs of a pronounced mental or physical abnormality exists in the accused; when the accused without recognisable outward signs is depraved or an extraordinarily serious crime is the matter of the trial.
The law especially refers to the last instance, by highlighting the question, whether, among the cases being subject to a possible medical examination, the accused is a juvenile felon. 
This represented a clear progression in the adaptation of criminal-biological research. The parameters of the medical examination were all encompassing. The suspicion that any kind of racial, physical, mental or intellectual defect existed or was likely to arise or any unexplained sign of depravity meant certain exclusion from the community. Even if a juvenile was fortunate enough to pass these tests, committing a serious crime sufficed for them to be charged as an adult and possibly executed.
Juveniles were one of many groups persecuted by the Nazi system of justice which existed to serve the state. The belief in individual dignity and citizens rights that had been built up over the preceding century was replaced with obedience and conformity to a higher power. Those who did not meet the criteria for admission into the national community were dehumanised, denigrated and removed from the healthy community. The notion of protection was inverted: the state, not the individual demanded protection from any type of recalcitrance, opposition or resistance. Piece by piece, the Nazis took apart every prevailing convention designed to protect the juvenile: the moral and legal aversion to the execution of juveniles, compulsory education measures and the age of discretion. All of this was in line with the standard National Socialist belief that members of the national community, even juveniles, only possessed rights while they served the best interests of the state. The national community required protection from every form of juvenile delinquency. This protection was delivered with an iron fist!
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 This article is a revised and edited version of a chapter bearing the same title, taken from my recently completed dissertation: “Resistance as High Treason: Juvenile Resistance in the Third Reich”, unpublished PhD, (Melbourne University, 2001). Back
 Karl-Heinz Schnibbe, Jugendliche gegen Hitler. Die Helmuth Hübener Gruppe in Hamburg 1941/42, Dokumentation Blair Holmes/Alan Keele, Druckhaus Schoder, Augsburg, 1991, p. 160. Back
 See the verdict from the Helmuth Hübener trial, case number 8 J 127/42g, pp. 19-20, as cited in Widerstand als Hochverrat 1933-45. Die Verfahren gegen deutsche Reichsangehörige vor dem Reichsgericht, dem Volksgericht und dem Reichskriegsgericht.[Microfiche-Edition], edited by Jürgen Zarusky and Hartmut Mehringer, K G Saur, Munich, 1994. Back
 Jeremy Noakes and Geoffrey Pridham,Nazism. A History in Documents and Eyewitness Accounts 1919-1945, Vol. 1, University of Exeter, Exeter, 1983, p. 475. Back
 Holger Schlüter, Die Urteilspraxis des nationalsozialistischen Volksgerichtshof, Duncker & Humblot, Berlin, 1995, p. 38. Back
 Helmuth Hübener designed and produced the leaflets, while his three co-accused, Rudolf Wobbe, Karl Schnibbe and Gerhard Düwer helped Hübener distribute the leaflets throughout Hamburg. The exact number of leaflets made by the Hübener group is unknown. The Nazis confiscated twenty bearing titles such as “Hitler’s guilt”, “Hitler, the murderer”, “Hitler is the sole guilty one”, “Down with Hitler…the People’s Seducer, People’s Corruptor, People’s Traitor”, which were introduced as evidence at their trial in 1942. The Nazis could not believe that the group was acting alone; see Blair Holmes and Alan Keele, When Truth Was Treason: German Youth against Hitler. The Story of the Helmuth Hübener Group based on the narrative of Karl-Heinz Schnibbe; foreword by Klaus J. Hansen, University of Illinois, Urbana, 1995, pp. 185-93. Back
 The letters appear in German in Karl-Heinz Schnibbe, Jugendliche gegen Hitler. For Hübener’s mother, see p. 230; for his attorney, see pp. 234-35; for the Gestapo, see pp. 237-38. The same letters are translated into English in Blair Holmes and Alan Keele, When Truth Was Treason, pp. 231-32, 234-36. Back
 Karl-Heinz Schnibbe, Jugendliche gegen Hitler, pp. 239-41; Blair Holmes and Alan Keele, When Truth Was Treason, pp. 237-39. Back
 Between 1933 and 1945, an estimated 2,400 persons were executed there; see Blair Holmes and Alan Keele,When Truth Was Treason, pp. 239-40, 348. Back
 Kurt Schilde, Im Schatten der ‘Weiße Rose': Jugendopposition gegen den Nationalsozialismus im Spiegel der Forschung 1945 bis 1989 , Europäischer Verlag der Wissenschaften, Frankfurt am Main, 1995. Schilde’s publication sketches the contours of the debate from the early war years through to 1989 and contains the most comprehensive bibliography of source material on this theme. Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich: Nationalsozialistische Jugendstrafrechtspolitik und Justizalltag, C.H. Beck’sche Verlagsbuchhandlung, Munich, 1992. Back
 Hereafter referred to as JGG.Back
 Section 9 of the same law provided a maximum sentence for a juvenile offender at ten years imprisonment; seeStrafgesetzbuch, Strafprozeßordnung, Gerichtsverfassungsgesetz nebst den wichtigsten Nebengesetzen, p. 374.Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 15. Back
 The Reichsjugendgerichtsgesetz (hereafter referred to as RJGG) was promulgated on 6 November 1943. Thierack’s comments were made at a conference from 18-22 November held in Bad Thüringen. Members of the Federal Ministry of Justice, SS and the Federal Youth Leadership were in attendance. These remarks later appeared in an article entitled “Reichsarbeitstagung der Jugendstrafrechtspflege”, Deutsche Justiz, 1943, p. 541. Deutsche Justiz is hereafter referred to as DJ. Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, pp. 1-4. Back
 Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz, Part 1″, DJ, 1943, p. 531. Back
 The Justice Case, pp. 208-09.Back
 According to paragraph 2 of Section 20; see The Justice Case, p. 209. Back
 Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, Harvard University Press, Cambridge, 1991, p. 79.Back
 Michael Burleigh and Wolfgang Wippermann,The Racial State: Germany 1933-1945, Cambridge University Press, Cambridge, 1991, p. 3. Back
 When Hindenburg died on 2 August 1934, Hitler became the new Commander in Chief of the Armed Forces. All Defence Force personnel now swore a personal oath of allegiance to Hitler. The Decree for the Protection of the People and the State, commonly known as the Reichstag Fire Decree, suspended all basic civil rights and made possible arbitrary, extra-judicial police ‘protective custody’. It also established the basis for an extended state of emergency; see Office of the United States Chief Counsel for the Prosecution of Axis Criminality, Nazi Conspiracy and Aggression , Vol. 3, document number 1390-PS, U.S. Government Printing Office, Washington DC, 1946, pp. 968-70. The Enabling Act, passed on 23 March 1933, allowed the government to decree laws, even those which entailed changes to the constitution, without the approval of the Reichstag; see U.S. Department of State, National Socialism: Basic Principles, U.S. Government Printing Office, Washington DC, 1943, pp. 106-07. Back
 Jeremy Noakes and Geoffrey Pridham,Nazism, p. 476. Back
 Carl Schmitt, “Der Weg des deutschen Juristen”, Deutsche Juristen-Zeitung, Vol. 39, 1934, p. 693. Cited in Ingo Müller, Hitler’s Justice, p. 75.Back
 Carl Schmitt, “Der Weg des deutschen Juristen”. This principle was evident during the Reichstag Fire trial. The main defendant, Marinus van der Lubbe was sentenced to death, even though at the time of the crime (28 February 1933), arson was not punishable by death. The prescription of the death penalty in cases of arson was only possible after a decree was passed on 29 March 1933; see Section 5 das Gesetz über die Verhängung und den Vollzug der Todesstrafe (Law Concerning the Imposition and Execution of the Death Sentence), 29 March 1933,Reichsgesetzblatt , Part 1, p. 151. Back
 Heinrich Gerland, “Neues Strafrecht” in Deutsche Juristen-Zeitung, Vol. 38, 1933, p. 860. Cited in Ingo Müller,Hitler’s Justice, p. 75. Back
 Georg Dahm, “Gerechtigkeit und Zweckmässigkeit im Strafrecht der Gegenwart”, in Paul Bockelmann et al., (ed.),Probleme der Strafrechtserneuerung: Festschrift für Eduard Kohlrausch, de Gruyter, Berlin, 1944, p. 11. Cited in Ingo Müller, Hitler’s Justice , p. 76. Back
 Entwurf eines Jugendgerichtsgesetzes nebst Begründung, 24 October 1922 (Outline of a Juvenile Court Law according to the Proclamation of 24 October 1922, as cited in Jörg Wolff,Jugendliche vor Gericht im Dritten Reich, p. 32.) Back
 The Hitler Youth Patrol Duty was set up in 1934 by Baldur von Schirach, Reich Youth Leader, to supervise oppositional youth organizations, especially the Bündisch Youth; see Hellfeld and Klönne,Die betrogene Generation, p. 301.Back
 Hebert Vornefeld, “Die Jugendkriminalität im Weltkrieg”, DJ , No. 27-52, 1939, p. 1862. The number of juveniles sentenced in 1918 by courts in Germany was more than twice as high as in 1914. Both Klönne and Blau use German federal crime statistics of this period in their studies of youth criminality during the Third Reich. There are minor differences in their findings. According to Blau, 46,990 juveniles were sentenced in 1914; 100,340 in 1918; the corresponding figures in Klönne are 46,940 and 99,498. Klönne provides a gender breakdown (males cited first): 39,734 to 7,206 in 1914; 84,845 to 14,653 in 1918; see Bruno Blau, “Die Kriminalität in Deutschland während des zweiten Weltkrieges”, p. 34;Jugendkriminalität und Jugendopposition im NS-Staat. Ein sozialgeschichtliches Dokument , edited by Arno Klönne, Münster Lit, Berlin, 1941, p. 25. Back
 Professor Dr Gottfried Boldt, “Zur Einführung des Jugendarrests”, Deutsches Recht, Vol. 2, No. 10, 1940, p. 2034.Deutsches Recht is hereafter referred to as DR. Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 5. Back
 The Law against the Reformation of New Parties of 14 July 1933 was applied against politically orientated circles of juveniles; the Decree of the President for Protection of People and State, against groups with links to Communist subversive activities or juveniles who gathered outside the Hitler Youth; see Jugendkriminalität und Jugendopposition im NS-Staat, pp. XI-XII. Back
 The Akademie für Deutsches Recht(German Academy for Law), set up the Arbeitsgemeinschaft für Jugendstrafrecht (Working Committee for Juvenile Criminal Law) in 1934 and the Strafprozeßausschuß (Committee for Criminal Proceedings) in April 1935 to divide the future juvenile criminal law code into Strafprozeßordnung (codes of criminal procedure), Strafgesetzbuch(penal codes) and Gerichtsverfassungsgesetz (constitutional law). For a comprehensive list of conferences, themes discussed and participants; see Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, pp. 392-398.Back
 Jeremy Noakes, “Social Outcasts in the Third Reich”, in Richard Bessel (ed.), Life in the Third Reich, Oxford University Press, Oxford, 1987, p. 84.Back
 Jeremy Noakes, “Social Outcasts in the Third Reich”, p. 94. Back
 Jeremy Noakes, “Social Outcasts in the Third Reich”, pp. 84-5. Back
 Roland Freisler, “Die rassebiologische Aufgabe bei der Neugestaltung des Jugendstrafrechts”, Monatsschrift für Kriminalbiologie und Strafrechtsreform, 1939, p. 209, as cited in Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 21.Back
 Jeremy Noakes, “Social Outcasts in the Third Reich”, p. 95; Heinrich Muth, “Jugendopposition im Dritten Reich”,Vierteljahreshefte für Zeitgeschichte , Issue 3, 1982, pp. 386-87.Back
 Heinrich Muth, “Jugendopposition im Dritten Reich”, p. 387.Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 216. Back
 Wolfgang Wippermann, Umstrittene Vergangenheit: Fakten und Kontroversen zum Nationalsozialismus, Elefanten Press, Berlin, 1998, p. 162. Back
 Wolfgang Wippermann, Umstrittene Vergangenheit, p. 162; Michael Burleigh and Wolfgang Wippermann, The Racial State Germany 1933-1945, p. 226. Back
 Verordnung zum Schutz gegen jugendliche Schwerverbrecher, 4 October 1939, in: Reichsgesetzblatt, Part 1, p. 2000. Back
 Edmund Mezger, “Kriegsstrafrecht und Kriegsstrafverfahrensrecht”, Akademie für Deutsches Recht, Vol. 7, 1940, p. 61.Back
 Gerhard Werle, Justiz-Strafrecht und polizeiliche Verbrechensbekämpfung im Dritten Reich, Walter de Gruyter, Berlin, 1989, pp. 274-75; Franz Liszt, “E.F. Klein und die unbestimmte Verurteilung. Ein Beitrag zur preußischen Kriminalpolitik des 19. Jahrhunderts (Rektoratsrede 1894)”, as cited in Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 37.Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 35. Back
 According to Section 3a of the Verordnung die Reichsregierung über die Zuständigkeit der Sondergerichte(Decree of the Federal Government regarding the Jurisdiction of Special Courts), 6 May 1933, inReichsgesetzblatt , Part 1, p. 259; Section 6 of the Gesetz zur Änderung von Vorschriften der Strafrechts und die Strafverfahrens (Amending Provisions of Criminal Law and Criminal Procedure), permitted the transfer of juveniles charged with high treason to the People’s Court, 24 April 1934, in Reichsgesetzblatt, Part 1, p. 341f. Back
 A penitentiary term involved loss of civil rights. Back
 The statistics from the Ministry of Justice are incomplete beyond 1940 and do not go beyond the middle of 1943. The statistics only include Volksdeutsche (ethnic Germans), as foreigners and Jews were not sentenced according to German criminal law; see Bruno Blau,”Die Kriminalität in Deutschland während des zweiten Weltkrieges”, p. 72.Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, pp. 35-7; Herbert Vornefeld, “Die Jugendkriminalität im Weltkrieg”, p. 1863. Vornefeld mentions two further cases: the robbing and strangling of a sixty-year-old pensioner by the seventeen-year-old Kurt Schmid and eighteen-year-old Ernst Stein on 30 September 1938 and the drowning of a five-year-old near Bochum in June 1939 by a sixteen-year-old apprentice Heinz Jahrmärker; see Herbert Vornefeld, “Die Jugendkriminalität im Weltkrieg”, p. 1863. Back
 For the Verordnung gegen Volksschädlinge, 5 September 1939; see Reichsgesetzblatt, Part 1, p. 1679. Back
 According to article 2 of the National Parasites Decree, crimes during air raids could be punished by lifetime terms at penitentiary or death, while article 3 stipulated that crimes endangering the public such as sabotage or arson carried an automatic punishment of death; see The Justice Case , pp. 188-89. Back
 Roland Freisler, “Gedanken zur Verordnung gegen Volksschädlinge” DJ , No. 27-52, 1939, p. 1450.Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 38. Back
 The available evidence suggests that the trend of juvenile criminality in WWII was similar to that experienced inWWI. In 1939, 17,444 juveniles were sentenced throughout the Reich (Germany and Austria). Two years later, this figure had more than doubled. In the last year where full statistics were available, 1942, the figure of 52,426 represented a 300% increase on 1939; see Jugendkriminalität und Jugendopposition im NS-Staat, pp. X, 25. Theft accounted for nearly two-thirds of all juveniles sentenced in 1942 (26,585), followed by sexual offences such as rape and unlawful sexual relations with children under fourteen (2042) or 5.1%, then falsification of documents (1531) or 3.8%, wilful damage to property (1322) or 3.3%, fraud (1130) or 2.8%, embezzlement (1094) or 2.7% and receiving stolen goods (998) or 2.5%; see Bruno Blau, “Die Kriminalität in Deutschland während des zweiten Weltkrieges”, p. 68.Back
 The Polizeilicheverordnung zum Schutz der Jugend was passed on 9 March 1940. For details; seeJugendkriminalität und Jugendopposition im NS-Staat, pp. 142-44.Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 44. Back
 This theme had been taken up by the Criminal Law Commission in January 1936, and discussed at a series of pre-war conferences, but no consensus had been reached; see Jörg Wolff, Jugendliche vor Gericht im Dritten Reich , pp. 128-34, 396. Back
 Professor Dr. Gottfried Boldt, “Zur Einführung des Jugendarrests”, p. 2036. Two weeks earlier,Jugenddienstarrest, a specific form of service detention, had been introduced in the Hitler Youth as punishment for breaches of discipline, through an order of the Youth Leader on 17 September 1940; see Herbert Vornefeld, “Auf dem Wege zu einem neuen Jugendstrafrecht”, p. 1205. Back
 In total, nearly 84,000 juveniles were sentenced to juvenile detention. After its inception, juvenile detention became the most common form of imprisonment imposed on juveniles and increased thereafter. The percentage follows the year in parenthesis: in 1941 (61.3%), 1942 (71.9%) and 1943 (76.2%); see Bruno Blau, “Die Kriminalität in Deutschland während des zweiten Weltkrieges”, pp. 72, 77. Back
 Roland Freisler, “Zur Handhabung des Jugendarrestes”, DJ , No. 27-52, 1940, p. 1407. Back
 Herbert Vornefeld, “Auf dem Wege zu einem neuen Jugendstrafrecht”, p. 1207. Back
 Section 5 of the Jugendarrestordnung, Verordnung des Reichsjustizministerium, (Decree from the Federal Ministry of Justice for Juvenile Detention) 1 November 1940, as cited in Professor Dr Gottfried Boldt, “Zur Einführung des Jugendarrests”, p. 2036; Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz, Part I”, p. 535. Back
 According to paragraphs 2 and 3 of Section 2 of the Decree for Juvenile Detention, DJ, No. 27-52, 1940, p. 1243.Back
 Decree for Juvenile Detention, p. 1244.Back
 Roland Freisler, “Zur Handhabung des Jugendarrestes”, p. 1409. Back
 Arthur Axmann, “Zur Einführung des Jugendarrests”, DJ, No. 27-52, 1940, p. 1258. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 1″, DJ, No. 40, 3 October 1941, p. 951. See also Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 142. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 1″, p. 951. Back
 See Bundesgesetz vom 18.7.1928 über die Behandlung junger Rechtsbrecher (Jugendgerichtsgesetz) , or Federal Law Concerning the Treatment of Young Law Breakers (Juvenile Court Law) in Reichsgesetzblatt, No. 234. See Dr Erwin Pichler-Dexler, “Die unbestimmte Verurteilung: ein Beitrag der Ostmark zum großdeutschen Jugendstrafrecht”,DR , Vol. 2, No. 11, 1941, pp. 2312-16. Back
 Strafgesetzbuch, Strafprozeßordnung, Gerichtsverfassungsgesetz nebst den wichtigsten Nebengesetzen, pp. 372-383.Back
 Professor Sieverts as cited in in Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, pp. 144-5. Back
 Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 146. Back
 Verordnung über unbestimmte Verurteilung Jugendlicher (Decree for Indefinite Sentences), of 10 September 1941 in Reichsgesetzblatt, Part 1, p. 567f. In 1942, 25% of all juveniles sentenced by German courts to imprisonment received an indefinite term; see Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz, Part 1″, p. 532. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 1″, p. 951. Back
 Juvenile felons were excluded on the grounds that they were no longer juvenile in a legal sense and in accordance with the Juvenile Felons Decree, should be treated as adults; see Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 1″, p. 950.Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 2″, DJ, No. 42, 17 October 1941, p. 981. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 2″, p. 983. Back
 “Nach S 4 Abs. 1 der VO zur Durchführung der VO über die unbestimmte Verurteilung Jugendlicher, 6. January 1942 (According to section 4, paragraph 1 of the Decree Implementing Indefinite Sentences for Juveniles),Reichsgesetzblatt , Part 1, p. 18. By the end of 1942, the following juvenile prisons had criminal-biological observation facilities: Bamberg, Berlin, Breslau, Celle, Darmstadt, Dresden, Düsseldorf, Frankfurt/Main, Graz, Hamburg, Hamm, Innsbruck, Jena, Karlsruhe, Kassel, Kiel, Cologne, Munich, Raumburg, Stettin, Stuttgart (juvenile prison Heilbronn), Vienna (Kaiser-Ebersdorf); see Verordnung des Reichsjustizministerium (Decree from the Ministry of Justice), 28 December 1942, as cited in DJ, 1943, p. 23. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 1″, p. 955 and Roland Freisler,”Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 3″ DJ , Vol. 44, 31 October 1941, p. 1015. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 1″, p. 956. Back
 Police had to be notified of any release in advance. See Vollzug von Schutzhaft an Jugendlichen in Jugendarrestanstalten der Reichsjustizverwaltung , (Completion of Protective Custody for Juveniles in Detention Facilities of the Federal Justice Administration), of 28.10.1942, in Jörg Wolff, Jugendliche vor Gericht im Dritten Reich, p. 215. Back
 Peter Hoffmann, History of the German Resistance, 1933-1945, 3rd Edition, Macdonald and Javes, London, 1977, p. 16. Back
 Roland Freisler, “Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 2″, p. 984 and Roland Freisler,”Gedanken zur VO über unbestimmte Verurteilung Jugendlicher, Part 3″, p. 1018. According to Section 60 of the Reichsjugendgerichtsgesetz; see Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz, Part 1″, p. 532. In 1944 alone, 80 juveniles under sixteen were sent to youth custody camps, Jörg Wolff,Jugendliche vor Gericht im Dritten Reich , p. 122. Back
 Paragraph 2 of Section 1 exempted Poles, Jews, Gypsies and Gypsy mixed-bloods from its application; see Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz, Part 1″, pp. 530-31. Back
 Paragraph 2 of Section 8 changed the maximum period for deprivation of freedom from one month to four weeks. Paragraph 4 increased the term of short-term arrest from one to six days; see Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz, Part 1″, p, 535. The minimum and maximum periods of an indefinite sentence did not change. In the following month, a subsequent decree from the Ministry of Justice, set up special departments within juvenile prisons for foreign juveniles (of Germanic blood); see Änderung der VO über den Jugendstrafvollzug des Reichsjustizministerium (Changes to the Decree Concerning the Youth Penal System), as cited in DJ, 1943, p. 585.Back
 Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz Part 2″, p. 556.Back
 Dr Heinz Kümmerlein, “Das neue Reichsjugendgerichtsgesetz Part 2″, p. 557.Back
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