To: The Reich Minister and Chief of the Reich Chancellery Dr. H. H. Lammers
Berlin W 8
6 Voss-Strasse
Subject: Draft of a Fuehrer decree concerning the authority for confirmation [of sentences] in criminal cases
Reference: Your letter dated 21 May 1942—Reich Chancellery 7010 B.
Dear Dr. Lammers:
During the session of the Reichstag held on 26 April 1942, the Fuehrer requested the Greater German Reichstag expressly in consideration of the exigencies of the war, for the authorization to take all measures he deemed expedient without being bound by the existing legal provisions.[251] The Fuehrer’s choice of [expressing his desire] this way shows the importance he imputes to sovereign acts of the State [Hoheitsakten]. It is not proper to limit pronounced sentences—which have a certain effect on legal affairs—in their guiding effect on legal and factual circumstances by questioning their irrevocability through further unpredictable interventions, after all lawfully provided legal resources have been exhausted. This applies to a special degree to the judgments of courts which, in every case, represent a considerable intervention into the personal conditions of the people involved and, moreover, have a certain effect on the entire nation, be it as an intimidation or as a satisfaction with the strong, order-establishing hand of the State. Moreover, the arrangement of the life of the people requires that the further development of legal conditions starts from certain fixed basic conditions which cannot be shaken from any side, and that the security of the law be guaranteed. If the Fuehrer expressly requested the right of direct intervention over all formal legal provisions, then this emphasizes particularly the importance of the modification of a judicial sentence.
The proposal made by the Reich Minister of Justice, however, is likely to obliterate the impression of this authorization, and to impair its importance. However, this would be an inevitable consequence of the transfer of the correcting authority to the presidents of the court of appeal and of the strong decentralization originating thereby. The proposed decree of the Fuehrer would be nothing more than another effort to correct insufficient sentences as has been repeatedly undertaken before by the Reich Justice Ministry. In addition to the analogy provision of article 2 of the Reich criminal (penal) Code, I am especially thinking of the extraordinary objection, the nullity plea, the participation of the public prosecutor in civil proceedings, the public parasite decree, the decree against desperate criminals, and the provisions concerning dangerous professional criminals and immoral criminals.
[handwritten] Justiz 3
Despite all these provisions we were not in the position to silence the complaints on judgment inadequate in consideration of the exigencies of war. We observed again and again how these provisions were applied as mildly as possible, and not at all with the required readiness for responsibility and strictness which actually would have been possible.