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Germany: neither incarcerated nor free

A confinement that dares not speak its name: deprivation of liberty in a psycho-legal hospital

The German prison population has been decreasing since 2004. The number of people deprived of their liberty, on the other hand, does not follow this trend. There are indeed nearly 13,000 of them detained in forensic psychiatric hospitals. These hospitals house people who have committed an offence and who are forced to undergo a “treatment order”. Confinement often stretches out over time, sometimes lasting more than ten years.

Pascal Décarpes is a criminologist and researcher. He works for the ​German National Agency for the Prevention of Torture (Nationale Stelle zur Verhütung von Folter). Prison Insider asked him three questions.

Prison Insider. The German prison system is sometimes presented as a model that should be emulated. Do you agree?

Pascal Décarpes. I do not consider the German model to be particularly successful. According to the latest official statistics, 56,557 people are held in German prisons. This is much less than in France where there are more than 72,000. It is therefore often considered “good”. However, the German model is sometimes misunderstood. More than 13,000 people in Germany are convicted of a crime before being removed from the prison system. After their trial, they are transferred to forensic psychiatric hospitals called “forensic hospitals”. These people, hospitalised on a criminal injunction, are not counted in prison statistics. However, they usually spend more time in a forensic hospital than they would have spent in prison.

Avoiding prison for people with mental disorders is a good thing. On the other hand, the system is unsatisfactory from a procedural point of view. The people confined to these facilities are locked up for an indefinite period. They can only be released on two conditions: first, a doctor must establish that there is no risk of recidivism; second, a judge must approve the doctor’s advice. If one or the other refuses, remedies are almost non-existent. The people institutionalised, psychically vulnerable and socially isolated, would not have the means to appeal the decision anyway.

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In 2021, Prison Insider published an analysis of the care provided to people suffering from mental health disorders in prisons and hospitals.

Read "Germany: walling up madness"

PI. How do forensic psychiatric hospitals differ from penitentiary institutions?

PD. People are generally better cared for in hospitals than in prisons. Those detained in forensic psychiatric hospitals are placed in single or double rooms. They benefit from an individual treatment plan, receive care, and can engage in socio-therapeutic activities.

Nevertheless, these facilities are not exempt from the problems of overcrowding and staff shortages. Both the number of people in care and the duration of confinement are increasing. Today, a person committed to a forensic hospital spends an average of eight years there. That’s double what it was 20 years ago. The needs are increasing, but the human and financial resources are not keeping up. The number of qualified nursing staff is insufficient. To compensate for this lack, facilities hire private security guards from companies that provide security at concerts or nightclubs and therefore have no mental health training. They are given only one or two days of instruction, or sometimes shadow staff for a few weeks.

The shortage of healthcare personnel is also reflected in the increasing use of special solutions. Solitary confinement placements are getting longer, lasting up to several months, without proactive oversight by the judge.

We wait until people are physically no longer capable of being dangerous. Only then do we agree to release them.

PI. Can the situation be improved?

PD. Public authorities want to increase the number of beds in forensic psychiatric hospitals. This plan is not without consequences for prisons. A transfer effect necessarily takes place: the more we invest in forensics, the fewer psychologists and psychiatrists there will be in penitentiary institutions.

More generally, it is obviously necessary to recruit and mobilise more healthcare personnel. We must also, and above all, stop locking up such a large number of people in forensic hospitals. I would like, in the long term, to return to the social psychiatry approach that existed in the 1970s.1 Half of the people placed in a forensic psychiatric hospital have nothing to do within four walls. They could be taken care of outside the hospital. Their health worsens due to the conditions of their detention. The system helps isolate them and aggravates their physical and mental state.

Society swears by zero risk. However, this is impossible. We therefore take precautions; we wait until people are physically no longer capable of being dangerous to society and only then do we agree to release them.

  1. Social psychiatry focuses on studying the causes of mental health disorders, particularly family and social relationships and socio-political conditions, as well as the therapies that can result from them. Various outpatient assistance, such as social psychiatry services, contact and counselling centres, day hospitals, assisted housing, etc. is located under one roof. ↩

Interview by Manon Lhopital — Translated by Leah Buhain and proofread by Molly Rapaport

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