The Washington PostDemocracy Dies in Darkness

If Nazis in their 90s won’t serve much time, why prosecute? To shame them.

Public exposure and humiliation is a form of criminal punishment that focuses on restoring the moral status of the victims

A 100-year-old man who once worked as a guard at the Sachsenhausen concentration camp appears in court in Brandenburg, Germany, on Thursday. He is charged with 3,518 counts of murder. (Annegret Hilse/Reuters)

Irmgard Furchner was scheduled to go on trial in Germany last Thursday on charges she contributed to the murders of 11,412 people when she was a typist at the Nazis’ Stutthof concentration camp. But Furchner, who is 96, didn’t show up. She fled her retirement home that morning in a taxi, which dropped her off at a subway station. “I want to spare myself these embarrassments and don’t want to make myself the laughingstock of humanity,” she had told the judge in a letter two weeks earlier, informing him that she would not appear and citing her “advanced age and physical impediments.”

But perhaps humiliation is the point. The question of whether and how to prosecute elderly Nazis should not be limited to the usual considerations of how society would benefit from their imprisonment or whether their guilt requires it. The shame the publicity confers on the accused — and the moral recognition it restores to the victims — may itself be the best reason to prosecute people in their 80s, 90s and 100s for their actions during World War II.

Furchner’s flight was brief. She was arrested several miles away in Hamburg. She will appear for her next court date, Oct. 19, because now she is being detained. And she is simply the latest of the elderly former Nazis who have been charged and brought to trial by Germany’s Central Office for the Investigation of Crimes of National Socialism since John Demjanjuk’s conviction in 2011 established the precedent. Demjanjuk was prosecuted on charges of accessory to murder for his time working as a guard at the Sobibor death camp, and now any concentration camp aide, from guard to secretary, may be prosecuted. Oskar Groening, known as the Accountant of Auschwitz, was charged with 300,000 counts of accessory to murder when he was 94. Hubert Zafke, a medical attendant at Auschwitz, faced 3,681 counts of murder at 95, but his trial was repeatedly suspended because he was in poor health. Reinhold Hanning, a camp guard at Auschwitz, was convicted at 94 of being an accessory to 170,000 murders. Last year, 93-year-old Bruno Dey, a guard at Stutthof, was found guilty of 5,230 counts of accessory to murder and given a two-year suspended sentence. Some defendants died before they could be sentenced, waiting on appeals. This month, a 100-year-old former guard at the Sachsenhausen camp, unnamed because of German privacy laws, is set to stand trial on 3,518 counts of murder.

How the Holocaust moved from concentration camps to Jewish victims’ homes

Because genocide became an official crime only after the Nuremberg trials, Germany decided in 1949 that charging former Nazis with this crime would amount to ex post facto law. As a result, German prosecutors relied on ordinary statutory law to try former Nazis. This meant that before the Demjanjuk case, an individual had to be proved personally guilty of murder. This was a high bar to meet given the complex bureaucracy of the concentration camps — a bar that did not reflect the nature of genocide as a collective, bureaucratic set of activities requiring thousands of accomplices to facilitate the mass killing of human beings — and one that effectively shielded camp guards, accountants and typists from prosecution. By the time the legal precedent changed, however, most former Nazis and camp employees were dead or very old. An important characteristic of criminal punishment is that it deprives the convicted of the liberty to pursue a free life. In these cases, the elderly accused have already lived the lives they wanted to live. What does society gain by imprisoning an elderly person, who may require regular medical attention at state expense?

It is precisely this question that is posed by defenders of a utilitarian theory of punishment. According to utilitarian concepts, punishment is justified when it benefits society by deterring others from committing similar crimes. Participating in genocide is no longer a likely occurrence in Germany. The institutional and political structures established to carry out the Holocaust were destroyed at the end of the war, and Germany is now one of the world’s most stable democracies. German and European Union laws prohibiting Holocaust glorification or denial, as well as the public display of Nazi symbols or speech, are among the strongest in the world. While there are neo-Nazis in the country, it is doubtful that the criminal prosecution of former Nazis will deter them from their hate and intermittent acts of violence. In fact, criminal prosecutions might exacerbate hateful views and violence, and not just from neo-Nazis. In 2009, psychologists Roland Imhoff and Rainer Banse found that “the perception of Jews’ ongoing suffering from past atrocities can result in an increase in anti-Semitism.” Reminders of World War II, these scholars found, may evoke feelings of guilt that lead to a rise in defensive antisemitism among some contemporary Germans. If the current prosecutions will have these kinds of negative consequences for society or no benefit at all, then defenders of the utilitarian perspective cannot justify them.

In contrast to this utilitarian perspective, the retributivist standpoint is based on the notion that transgressions deserve punishment regardless of the potential to benefit society. The Nazi hunter Efraim Zuroff states that “the passage of time in no way diminishes the guilt of those who participated in the Holocaust,” and this fact alone justifies their prosecution and imprisonment. His view aligns with that of Immanuel Kant, who claimed that punishment for wrongdoing is an unconditional moral demand that must be fulfilled regardless of contingent circumstances such as convenience, inclination or the passage of time.

Both the utilitarian and retributivist viewpoints — the two chief approaches to justifying criminal punishment — make reasonable arguments, but there is no consensus as to which is the “best,” and neither seems to offer a perfect framework for identifying the correct punishment for the few remaining elderly Nazis. It would be wrong, however, to assume that the only alternative to prosecution and imprisonment is no response at all; concentrating on juridical theories of punishment gets in the way of our ability to see what is significant about publicly addressing the crimes of aging former Nazis or their accomplices.

Why I became a German citizen, 80 years after escaping the Nazis as a Jewish baby

Take, for example, the English folk custom of the 18th and 19th centuries known as rough music, ran-tan or ran-tanning. Ran-tanning was practiced to humiliate people who had violated social or moral norms. Essentially, raucous processions involving songs and the rattling of cacophonous instruments, the performance of short plays and bawdy limericks, and the burning of effigies occurred outside the homes of the accused. The goal of such “festivities” was to shame the perpetrators by publicizing their offenses.

When an individual or group’s moral status has been discounted, ignored or denied, society has a moral duty to recognize and repair the wrongdoing. The purpose of reparative, restorative or compensatory measures such as ran-tanning is to acknowledge an individual or group as a full and equal member of the moral and social community, admit that this status was diminished by an act of wrongdoing, and promise that the status will be restored and protected in the future. The very recognition of wrongdoing is morally significant and can perform an act of moral repair.

I’m not suggesting a return to ran-tanning, but publicizing the crimes of former Nazis and their aides can serve as an expressive act indispensable to restoring the diminished moral standing of their victims; it is paramount that the heinous crimes of the past be brought to light. Today, publicizing acts of wrongdoing can occur through truth commissions, memorials, commemorations, public apologies and simply public exposure.

Highlighting the transgressive acts of aging perpetrators of the Holocaust may offer a satisfactory solution to the question of how to punish them that balances utilitarian and retributivist needs. The age of the accused may indeed provide convincing utilitarian reasons for them to avoid prison. At the same time, it is crucial to recognize — and to teach new generations — that there is no statute of limitations on genocide. Public transparency and exposure express to their victims and victims’ descendants that the past crimes of the Nazis and their accomplices deserve to be recognized and detested.