Definition and Development of the Concept of Repeat Offender
The concept of the repeat offender refers in German criminal law to a person who has committed multiple criminal offenses. Repeat offending is not identical to other offender types such as recidivists or serial offenders but constitutes its own category with considerable legal significance in criminal proceedings as well as in sentencing. In criminological literature, the repeat offender is often also referred to as a habitual offender, whereby the exact definition and distinction is treated differently legally and through case law.
Historical Development
Even in early criminal law, offenders with more than one crime were given special consideration. The historical development of the law has led to the current understanding that both multiple similar and different offenses committed by one offender can be subsumed under the concept of repeat offending. The relevant regulations can be found, among others, in the German Criminal Code (StGB) and other procedural rules.
Distinction from Similar Offender Types
Recidivist
Ein Recidivist is an offender who commits another crime after already having been convicted. Repeat offending additionally covers constellations in which several offenses are committed without yet having resulted in a conviction for any of the offenses.
Serial Offender/Serial Criminal
Der A serial offender commits several similar offenses in a close temporal or factual relationship. In contrast, the repeat offender is a general term for any person who commits multiple criminal acts, regardless of the type, connection, and time frame of the acts being less strictly limited.
Habitual Criminal
Als Habitual Criminal was formerly used to describe an offender who commits crimes due to a persistent disposition. The definition of habitual criminality was abolished by law, but the concept of the repeat offender remains relevant.
Legal Framework
Statutory Provisions
In German criminal law, repeat offending is not conclusively defined in a single paragraph but is considered in numerous provisions. These include in particular:
- Section 46 StGB (Principles of Sentencing): The court also considers the existence of repeat offending when determining the sentence.
- Section 53 StGB (Aggregated Sentencing for Multiple Offenses): Regulates the formation of an aggregated sentence when several offenses are committed by the same person.
- Section 56 StGB (Suspended Sentence): Repeat offending may argue against a suspended sentence.
- Section 66 StGB (Preventive Detention): Is applicable, among other things, to repeat offenders if certain conditions are met.
- Criminal procedural regulations, particularly regarding pre-trial detention and risk of reoffending.
Sentencing of Repeat Offenders
Repeated commission of criminal offenses has a significant influence on the severity of the sentence. Within the framework of sentencing under Section 46 StGB, an important principle states: Anyone who has already committed several offenses will generally be subject to a higher sentence, especially if repeated offending indicates an increased dangerousness or a criminal inclination.
Formation of Aggregated Sentences
According to Section 53 StGB, if several offenses are committed before a first conviction, an aggregated sentence is formed. The key requirement is that the individual offenses are legally independent, but all were committed before the first judgment (so-called “offense multiplicity”). For the repeat offender, this can result in significant cumulative sanctions.
Impacts on Suspended Sentences and Preventive Detention
The decision to grant a suspended sentence largely depends on the individual case. Committing multiple offenses may argue against a positive social prognosis (§ 56 StGB). In addition, repeat offending is a significant criterion in the ordering of preventive detention, particularly for serious or repeated sexual offenses or offenses against life.
Criminological Aspects
Criminogenesis
The causes of repeat offending are multifaceted, ranging from social and psychological factors to sociological influences. The Criminogenesis analyzes in particular the interplay of personal dispositions, life circumstances, and societal factors.
Research on Recidivism and Prevention
Empirical studies show that repeat offender account for a considerable proportion of overall crime. Effective prevention strategies and measures for resocialization are a focus of current criminological research to prevent further criminal activity.
Practical Significance in Criminal Prosecution
Criminal Investigation Proceedings
In criminal investigation proceedings, findings concerning repeat offending play a central role. Investigative authorities weigh prior offenses of a suspect heavily, especially if there is a presumed risk of reoffending. This can also be relevant in applications for pre-trial detention (§ 112 (3) StPO).
Main Hearing and Judgment
In the criminal trial, the fact of repeat offending is given particular weight in determining the sentence, assessing culpability, and deciding on measures for rehabilitation and public safety.
International Perspective
In other legal systems too, the repeated commission of offenses is relevant in sentencing and in preventive measures (such as decisions on probation or preventive detention). The exact arrangements, however, vary depending on the national legal system.
Conclusion
The legal assessment of repeat offenders is a central issue in criminal law and criminology. It affects not only the question of sentencing but also aspects of prevention, resocialization, and public safety. Careful legal classification and differentiated treatment of repeat offending are of great importance for a balanced and fair criminal justice system.
Frequently Asked Questions
How is repeat offender status determined under German criminal law?
Repeat offender status under German criminal law is determined based on the number and type of individual offenses as well as a person’s final convictions. It is important to distinguish whether these are multiple independent acts committed separately or serial offenses with a similar modus operandi. Particularly relevant is whether and how often the individual concerned has already been convicted of similar offenses. The court closely examines prior convictions, dates of offenses, and the circumstances of each crime to assess whether there is repeated recidivism—in the sense of Sections 53 et seq. of the German Criminal Code (StGB). Especially in sentencing (§ 46 StGB), the fact that someone is a repeat offender is given special consideration; specific preventive aspects also play a role. The determination is usually made by evaluating the Federal Central Register and information from records of prior convictions.
What impact does repeat offender status have on the sentence?
Status as a repeat offender can have a significant effect on the actual sentence imposed. In the context of sentencing (§ 46 StGB), the repeated commission of similar offenses is considered an aggravating circumstance. The judiciary assumes that previous punishments have had insufficient deterrent or rehabilitative effect, which supports the imposition of a stricter sentence. Custodial sentences are often imposed, which may sometimes be suspended, but repeat offending can make the granting of probation more difficult or even exclude it. In certain cases, such as with persistent or recidivist offenders, the court may also order rehabilitation and protective measures (for example, placement in a detoxification institution pursuant to § 64 StGB or preventive detention according to § 66 StGB).
What legal consequences do repeat offenders face in case of reoffending?
In case of reoffending, i.e., after repeated commission of relevant crimes, courts will impose stricter measures. The sentence may be significantly increased, and additional consequences such as supervised release (§ 68 et seq. StGB), professional bans (§ 70 StGB), or even preventive detention (§ 66 StGB) for particularly dangerous offenders are possible. The courts will examine whether there are specific forms of commission or repeated recidivism, which may be interpreted in law as a ‘tendency’ to commit serious crimes. Especially in cases of violent, sexual, or property crimes, this can lead to a significant increase in penalties.
In which cases is a suspended sentence excluded for repeat offenders?
The suspension of a custodial sentence on probation under § 56 StGB depends on the prognosis and sentence expectation. Particularly for repeat offenders whose prior convictions involve a similar chain of offenses and where previous probationary periods or lenient penalties have shown no demonstrable learning effect, courts often deny probation. Probation is legally excluded for terms of imprisonment exceeding two years. In repeat offenders with relevant repeated offenses, the court often assumes that neither a favorable social prognosis nor a prospect of lawful conduct exists.
What role does repeat offender status play in the ordering of rehabilitation and protective measures?
Repeat offender status is a key criterion for the ordering of rehabilitation and protective measures pursuant to Sections 61 et seq. StGB. Especially when a tendency to reoffend is identified, in the case of serious offenses, or when the person’s dangerousness is established, the court can order measures such as placement in a detoxification institution (§ 64 StGB) or preventive detention (§ 66 StGB). Repeat offender status underscores the persistent threat to the public and the heightened risk of recidivism which can justify such judicial measures.
Is there a limitation period for taking earlier offenses into account in assessing repeat offender status?
German criminal law generally provides for limitation periods relating to prosecution and enforcement (§§ 78 et seq. StGB). However, even older offenses and convictions may be considered in the assessment of repeat offending, as long as they are still recorded in the Federal Central Register and indicate a tendency to reoffend. However, when stipulated periods have expired, removal from the register is prescribed (§§ 45, 46 BZRG), so that particularly old or already expunged sentences may generally no longer be used to the detriment of the offender.
How does the treatment of first-time and repeat offenders differ in court?
While more restraint is generally exercised in sentencing first-time offenders and there is a greater willingness to suspend the sentence on probation, in repeat offenders, both specific and general preventive considerations are weighed more heavily. This means that the sentence is not only tailored to the individual (rehabilitation) but is also intended to have a deterrent effect on the general public. In the case of repeat offenders, it is reviewed whether the measures taken so far for behavioral change are sufficient or need to be intensified. Repeat offending also regularly has a negative impact on the social prognosis and on the question of pre-trial detention.
