“The court applies the same criteria for the award of punishment as it would if it were dealing with a German fellow citizen as defendant. This cannot be sanctioned. The Jew is the enemy of the German people, who has plotted, stirred up, and prolonged this war. In doing so, he has brought unspeakable misery upon our people. Not only is he of a different, but he is also of an inferior race. Justice, which must not measure different matters by the same standard, demands that just this racial aspect must be considered in the award of punishment. Here, where a profiteering transaction typical of the defendant as a Jew, and to the disadvantage of the German people, had to be judged, the verdict, in awarding punishment, must take into consideration in the first place that the defendant for years had deprived the German people of considerable assets. * * * This typical Jewish parasitical attitude required the most severe judgment and heaviest punishment.”
Beginning with this issue in October 1942, the Judges’ Letters were issued regularly and continued to be filled with exhortations to the utmost ruthlessness in the imposition of sentences. Later on, they were supplemented by Lawyers’ Letters (Rechtsanwaltbriefe). As time went on, German criminal law and procedure scarcely retained any other elements than that of threatening wavering elements of the population into submission. The wholesale destruction of legal process culminated at the very end of the war in the creation of the emergency civilian courts martial, which have already been mentioned. These courts martial were given jurisdiction “for all kinds of crimes endangering the German fighting power or undermining the people’s defensive strength”[38] and, if they found the defendant guilty, could impose only the death sentence. The end of the war cut short the life of these tribunals, after ten weeks of judicial terrorism.
Throughout the war, the administrative and penal branches of the Ministry of Justice continued to cooperate in protecting loyal followers of the Third Reich from criminal prosecution for their innumerable atrocities against Poles, Jews, and other “undesirable elements.” At the successful conclusion of the Polish campaign, an unpublished decree suspended all prosecutions against racial Germans in Poland for any punishable offenses which they might have committed against Poles during the Polish war “due to anger aroused by the cruelties committed by the Poles.” In 1941, the defendant Schlegelberger assured Rudolf Hess that he would consider “benevolently” an amnesty in any particular case of atrocities committed after the conclusion of the Polish campaign. An example of this “benevolent consideration” may be worth noting. Two Germans, one of whom was a sergeant of police, shot two Polish priests in Poland in the spring of 1940 “for no reason other than hatred for the Catholic clergy.” A Special Court imposed 15 years’ penal servitude for manslaughter. After 2 years of the sentence had been served, Himmler asked that the Germans be pardoned, and that it be made possible for them to “win their reprieve” through service at the front. At Himmler’s request, the Ministry of Justice reduced the sentence to 5 years, and both men were released from confinement and assigned to duty in a Waffen SS [armed SS] unit.
After the advent of Thierack and Rothenberger, cooperation between the Ministry of Justice and Himmler’s police became even closer. On 18 September 1942 Thierack and Rothenberger held a long conference with Himmler and other high ranking SS leaders at Hitler’s headquarters. Thierack’s notes of the meeting included the following (654-PS, Pros. Ex. 39):
“1. Correction by special treatment at the hands of the police in cases where judicial sentences are not severe enough. On the suggestion of Reichsleiter Bormann, the following agreement was reached between the Reich Leader SS, and myself:
a. In principle, the Fuehrer’s time is no longer to be burdened with these matters.
b. The Reich Minister of Justice will decide whether and when special treatment at the hands of the police is to be applied.
c. The Reich Leader SS will send the reports, which he sent hitherto to Reichsleiter Bormann, to the Reich Minister of Justice.
d. If the views of the Reich Leader SS and those of the Reich Minister of Justice agree, the final decision on the case will rest with them.
e. If their views are not in agreement, Reichsleiter Bormann will be asked for his opinion, and he will possibly inform the Fuehrer.