Topographies of forensic practice in Imperial Germany

IJLP-00976; No of Pages 8 International Journal of Law and Psychiatry xxx (2013) xxx–xxx

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International Journal of Law and Psychiatry

Topographies of forensic practice in Imperial Germany Eric J. Engstrom ⁎ Department of History, Humboldt University, Unter den Linden 6, 10099 Berlin, Germany

a r t i c l e

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Available online xxxx Keywords: Forensic psychiatry History Germany Mental asylums Prisons Criminal law reform

a b s t r a c t This article examines the topography and “cultural machinery” of forensic jurisdictions in Imperial Germany. It locates the sites at which boundary disputes between psychiatric and legal professionals arose and explores the strategies and practices that governed the division of expert labor between them. It argues that the overdetermined paradigms of ‘medicalization’ and ‘biologization’ have lost much of their explanatory force and that historians need to refocus their attention on the institutional and administrative configuration of forensic practices in Germany. After first sketching the statutory context of those practices, the article explores how contentious jurisdictional negotiations pitted various administrative, financial, public security, and scientific interests against one another. The article also assesses the contested status of psychiatric expertise in the courtroom, as well as post-graduate forensic psychiatric training courses and joint professional organizations, which drew the two professional communities closer together and mediated their jurisdictional disputes. © 2013 Elsevier Ltd. All rights reserved.

1. Introduction When the famous liberal criminal law reformer, Franz von Liszt, attended the annual meeting of the German Society of Psychiatrists in 1908, he found his hosts in low spirits. The members of the society had been called to order to debate pending legislation on a new German criminal code. The meeting was designed to come to a consensus on necessary changes to the code and to coordinate efforts in a final push to influence the new legislation. Given that the code had not been substantially revised in more than thirty years and that, in the meantime, a whole new science of criminology had sprung into being, one might have expected to find psychiatrists energized by the prospect of helping to craft new legislation that would take account of the latest findings of forensic psychiatry. But in spite of such prospects, psychiatrists seem to have been unable to generate much enthusiasm about criminal law reform. On the contrary, Liszt found his psychiatric colleagues wallowing in “pessimism and resignation” (Liszt, 1908). Liszt's assessment of psychiatrists as “pessimistic” and “resigned” is especially noteworthy for standing in apparent contradiction to the general tone and assumptions posited in much of the historiography on psychiatry and criminal law reform in Imperial Germany. These studies have tended to suggest a rising crescendo of psychiatric influence, arguing that the German penal and criminal justice systems were being progressively medicalized and biologized (Gadebusch Bondio, 1995; Güse & Schmacke, 1976; Müller, 2004). Other accounts, however, have cast doubt on this (inversely Whiggish) argument. Once described by Richard Wetzell as a “second wave” of research on ⁎ Tel.: +49 30 686 9949. E-mail address: [email protected].

twentieth century science in Germany, these studies have revealed a more subtle and complex picture of historical developments (Dickinson, 2010; Habermas, 2003; Reinke, 2009; Vec, 2007; Wagner, 2002; Wetzell, 2000).1 In particular, they have found that “the genetic determinism and racism characteristic of so much of the Nazi's regime failed to supplant a more complex discourse on the etiology of crime” (Wetzell, 2000). Moving beyond a confirmation of any late-nineteenth century “naturalization of deviance” (Becker, 2002, 2004), they have highlighted processes of “demedicalization” and a “pluralization” of concepts of delinquency (Germann, 2004). They have also pointed to the decidedly inchoate and fragmented formation of criminological science (Galassi, 2004). And in his most recent work, Wetzell himself has helped us better gauge the influence of psychiatrists by clearly distinguishing between psychiatric influence in the courtroom, in criminological research, and in the penal reform movement (Wetzell, 2009). I conceive this present article as participating in this second wave of research on criminology and forensic psychiatry in Germany. But my approach is also a kind of cross-current to this second wave, in that my attention has been drawn less toward convoluted criminological theories and parliamentary debates, and more toward forensic practice and professional jurisdictions. In that sense, I'm interested not just in reassessing the over-worked paradigms of medicalization and biologization, but also in expanding our perspectives on the interdisciplinary topography of forensic psychiatry. This article therefore explores first and foremost the specific interaction of psychiatrists and jurists at 1 Long before this ‘second wave’, Monika Frommel (1991) recognized the lopsided historiographic emphasis on Lombrosian continuities. And many years ago, Charles Rosenberg (1968) argued that historians tend to distinguish too rigidly between somatic and psychological perspectives and thereby fundamentally misunderstand nineteenth century psychiatry.

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Please cite this article as: Engstrom, E.J., Topographies of forensic practice in Imperial Germany, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.09.006

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various levels of professional work and locates the sites at which boundary disputes arose. I am interested in what Andrew Abbott (1988) has called the “cultural machinery” of forensic jurisdictions, by which I mean the different spaces and technologies that shaped the relationship between psychiatrists and jurists and that governed the division of expert labor between them. In a manner of speaking, I am exploring the institutional and administrative configurations of forensic practice in Germany.2 The need for such an approach arises not least from the fact that the revision of the German criminal code that many took to be pending in 1908, never came to pass. One of the consequences of the failure of criminal law reform in Germany has been that historical accounts have focused largely on parliamentary debates that never culminated in legislation. In other words, heated debates about the biological origins of crime or measures to sterilize criminals were not readily translated into code. Consequently, if one is interested in assessing the influence of forensic psychiatry on the criminal justice system in the late nineteenth and early twentieth century, one will have to look outside the code itself, beyond parliamentary debates and past the resolutions of professional organizations to focus also on forensic practices across a far broader topography of inter-professional and interdisciplinary jurisdictions (Kuban, 1997). In pursuing these aims, this article is divided into four sections: First, I will briefly consider the statutory context in which forensic psychiatrists operated and show how specific articles of the code effectively generated different institutionalized populations, including the ‘criminal lunatic’, ‘lunatic criminal’, and the so-called Untersuchungsgefangener. Second, I will argue that the situation of these populations was subject to contentious jurisdictional negotiations that pitted various administrative, financial, public security, and scientific interests against one another. Third, I will then briefly consider the contested status of psychiatric expertise in the courtroom before finally turning to the post-graduate forensic psychiatric training courses and joint professional organizations that served to mediate jurisdictional disputes and draw the two professional communities closer together.

Italy, Norway, Sweden, and Denmark. In the eyes of many observers this was an injustice, and so efforts to reform the code zeroed in on the question of reduced accountability (Tuczek, 1902). A second piece of code relevant to my argument was Article 487 of the Criminal Procedure Code (StPO) of 1877. It concerned criminals who fell mentally ill after they had been sentenced. In this case, the law required that the execution of sentence be postponed. After a determination of mental illness had been made, the prisoner had to be committed to a psychiatric facility and then, once cured, returned to prison. Article 487 furthermore stipulated that in the event of prison inmates having been temporarily transferred to a mental asylum, their stays in the asylum would count toward the duration of the sentence. But the exact penal status of the individual receiving psychiatric care remained a point of much contention. Whether a sentence was postponed, interrupted, or commuted involved important legal distinctions that invoked very different jurisdictional configurations, such that ultimately an individual's release from prison would involve, for example, either a court order, an administrative ruling, a statutory determination, or a medical diagnosis (Cramer, 1908; Rixen, 1907). These two articles of the code had some very real consequences for penal and psychiatric practice. On the one hand, they resulted in rising numbers of prison inmates being transferred to psychiatric facilities. On the other hand, they witnessed individuals who weren't legally insane, but simply — in the jargon of the day — mentally deficient (geistig minderwertige) being found guilty in court and sentenced to terms in prison. By the 1880s, these trends were producing two institutionalized populations that came to be strongly associated with the labels of ‘lunatic criminal’ (Irre Verbrecher) and ‘criminal lunatic’ (Verbrecherischer Irre). It was the cross-over of these two groups (prisoners to asylums and the mentally ill to prisons), i.e., a question of proper and effective distribution of institutionalized populations, that catalyzed and granted urgency to much of the contemporary debate in Germany on criminal law reform. Speaking in 1903 to the national convention of German medical officials, Germany's foremost criminologist, Gustav Aschaffenburg, insisted that “Today, the question of where to put the lunatic criminal lies at the crux of the entire system of psychiatric care” (Offizieller Bericht, 1903).

2. Statutory context 3. Placing the mentally ill criminal Two articles of the German criminal code are especially relevant to any assessment of the jurisdictional contests between psychiatrists and jurists. Article 51 of the Imperial Criminal Code (RStGB) of 1871 stipulated that criminal acts were not punishable if perpetrated by individuals who, due to mental illness, lacked free will and were therefore not accountable for their actions. Such defendants were to be acquitted and — at least in Prussia after the early 1880s — then committed to psychiatric care. In Article 51, free will was an absolute category. No provision was made for ‘greater’ or ‘lesser’ degrees of free will, nor for greater or lesser degrees of accountability. In this respect, the criminal code differed from the civil code. Whereas in civil law (Entmündigungsverfahren) the courts did distinguish between different degrees of mental incapacity (mental illness, mental deficiency), in criminal law no such distinction was made. In other words, in the German criminal code there was no legal basis on which the concepts of free will (freie Willensbestimmung) and accountability (Zurechnungsfähigkeit) could be parsed in order to account for the multitude of borderline conditions that psychiatrists discerned in daily practice. German criminal law differed in this respect from the codes in other European countries, such as 2 Urs Germann's work (2003) on the development of forensic psychiatry in Switzerland takes a similar approach, emphasizing forensic practice, inter-professional discourse, and situative dispositions in order to test the effective reach of medicalization paradigms. Several of the arguments advanced here profit from and confirm his findings, especially in relation to his concept of an interdisciplinary “field of practice”. The inadequacies of medicalization theory when it comes to forensic questions have also been underscored by Roger Smith (1981).

Germany in the late nineteenth century witnessed a sea change in attitudes among psychiatrists about where and how mentally ill criminals should be institutionalized (Kunowasky, 1904; Offizieller Bericht, 1903). In the 1860s, asylum superintendents tended to view them first and foremost as patients that belonged in psychiatric institutions. There, it was commonplace to practice a so-called dilution method (Verdünnungsmethode), whereby criminals were distributed as widely and thinly as possible amongst the asylum population. This corresponded with the medical doctrines of the day, which viewed the asylum's environment and its familial structures as therapeutic agents. By the early 1890s, however, these views had been largely discredited (Ribstein, 1888). Increasingly, alienists saw no place for criminals in the institutional family of the mental asylum (Pelman, 1912). When a doctor from Saxony was dispatched by state officials in 1904 to inspect facilities throughout Germany, he found unanimous support for the view that mentally ill criminals should be housed in separate quarters, away from the asylum's non-criminal population. Contemporary observers attributed this change in views to two causes. First, there had been a marked increase in the number of mentally ill criminals institutionalized in asylums. Some alienists interpreted this rise in numbers as evidence for their heightened standing within the criminal justice system. But the rise was also a consequence of various legal ruling and administrative orders. The second, more significant cause behind the shift in alienists' attitudes was the advance of John Conolly's therapeutic principles of ‘nonrestraint’, which ran counter to the carceral objectives of the

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penal system (Griesinger, 1861/1964). Not only could the specific treatment-regimes associated with non-restraint not be fully applied to criminals, but their presence on the wards also undermined the entire therapeutic and institutional ethos that the methods of nonrestraint required in order to be effective. Consequently, within the non-restraint regime of modern asylums, criminals posed hitherto unanticipated dangers (Kunowasky, 1904). Not least due to these developments, psychiatrists and jurists began to call for special facilities for mentally ill criminals. In the 1870s and 1880s several professional organizations of psychiatrists, prison physicians, and prison officials issued resolutions advocating alternative institutional arrangements (Ribstein, 1888). A few observers, looking across the channel to the English and Irish asylums in Broadmoor and Dundrum, called for completely separate institutions. But they represented only a small minority of views (Cramer, 1908; Kunowasky, 1904; Ribstein, 1888). Most observers rejected Broadmoor as a model, deeming such institutions far too expensive and fearing that they would concentrate incompatible inmates to the detriment of the rehabilitative and therapeutic prospects of all concerned (Aschaffenburg, 1912). Events in the 1880s in Germany's largest psychiatric facility in Dalldorf near Berlin drove this point home and prompted its director, Wilhelm Sander, to reject calls for separate institutions (Offizieller Bericht, 1903; Sander & Richter, 1886). Instead, most psychiatrists advocated forensic annexes within existing prisons or (less often) within asylums (Schmiedebach, 1986). In the years straddling 1900, German governments expanded facilities in prisons and asylums.3 One of the most extensive and comprehensive programs was undertaken by the Prussian government which began to build a series of observation stations in its prisons. For the purposes of this paper, it's useful briefly to consider how these penal observation stations were organized (Bonhoeffer, 1899; Unger, 1898). Not surprisingly, the observation stations were multi-functional arrangements, designed to solve a number of administrative problems. For one, they were medical facilities for observing prison inmates and determining whether their madness was curable or not. If curable, inmates would be sent to a psychiatric hospital proper (Dalldorf) and their incarceration interrupted; if incurable, their sentence would be commuted and administrative jurisdiction over the individual would pass to local government and (usually) welfare agencies. The observation stations were also forensic facilities: they admitted defendants sent by the courts to determine the status of their mental health. And finally, the observation stations were penal facilities as well: they admitted ‘borderline’ inmates that were not necessarily mentally ill, but who disrupted the orderly regime of the prison (Bonhoeffer, 1899). According to their advocates, these institutions had a number of advantages. For one, they enabled psychiatrists to conduct psychiatric research on prison inmates. Ongoing contact with penal “practice” and the “wealth of available [patient] material” in the observation stations would help the cause of reform and comprise “a space in which psychiatrists and criminalists could work together” (Bonhoeffer, 1899). However, far more important than their potential criminological use, the greatest advantage of these observation stations was their ability to admit patients rapidly, without the time-consuming bureaucratic regulations involved in committing patients to psychiatric asylums. In other words, they were specifically designed to address the practical and administrative needs of the criminal justice system. For indeed, there were considerable legal, administrative and financial implications — not to say obstacles — that not only made

3 Psychiatric wards in prisons were built in Waldheim (1876) (Saxony), Tapiau (1885), Moabit (1887), Breslau (1899), Köln (1900), Halle (1901), Graudenz (1902), Bruchsal (1903), and Württemberg (1905). Wards for criminals in asylums were established in Nietleben (1898), Dalldorf (1898), Düren (1900), Neuruppin (1903), Neustadt (1904), Eglfing (1905), Brauweiler (1908), Buch (1910), and Kleve (1911). Some facilities also existed in custodial asylums (Plagwitz, Rybnik, Eickelborn) (Schröter, 1994).

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the transfer of patients to and from prisons and asylums problematic, but also complicated any picture of forensic psychiatry's jurisdictional topography. Psychiatric care in public mental institutions throughout the German Empire was wrapped up in regulations governing poverty relief (Engstrom, 2003; Unger, 1898). In Germany's largest kingdom, Prussia, local communities (Ortsarmenverbände) and the provinces (Landesarmenverbände) were responsible for providing general psychiatric care. Prisons, on the other hand, were funded by the German State (Ministries of the Interior and Justice). At the same time, however, court rulings in Prussia had determined that the care of mentally ill criminals was a “mediate police expense” that accrued to local and provincial agencies (Werner, 1906). As a result of these and other widely divergent administrative jurisdictions, questions as to who paid for the respective costs of incarceration, care, and treatment of institutionalized populations were up for grabs in heated negotiations and complex legal battles between competing bureaucratic authorities. Prussian provinces, for example, had a financial interest in keeping mentally ill criminals out of their asylums and seeing them remain in the Prussian prison system. In the province of Rhineland, authorities even went so far as to formally exclude mentally ill criminals from their institutions (Offizieller Bericht, 1903). On the other hand, new regulations introduced in Prussia (1901) and Bavaria (1914) made it more difficult for psychiatric institutions to release mentally ill criminals (Cramer, 1905; Hentig, 1914). Thus, the provinces found themselves having to foot the bill for patient/inmates whom doctors had certified as cured, but whom police officials insisted remain institutionalized. Such jurisdictional contests and overlap resulted in a raft of different legal, financial, and administrative classes of forensic patients (Becker, 1896; Werner, 1906). The convoluted details of these arrangements needn't concern us here. My point has been simply to sketch just how diverse the topographies of jurisdiction between psychiatry and jurisprudence were. This topography was shot through with administrative, institutional, and professional interests and rationalities. Whether an individual was deemed to be a ‘lunatic criminal’ (Irre Verbrecher) or a ‘criminal lunatic’ (verbrecherischer Irre) had as much, indeed more to do with the jurisdictional configuration in which they found themselves, than with any clearly diagnosable psychiatric ailment. As Gustav Aschaffenburg remarked, psychiatrists had “no idea where to draw the line between lunatic criminals and the criminal lunatics” (Offizieller Bericht, 1903). And for good reason: the categories had little to do with the ‘nature’ of the individuals in question, and everything to do with their situation and placement within the interprofessional topography of forensic practice (Cramer, 1905). Yet the different strategies adopted by psychiatrists in disputes over ‘lunatic criminals’ and ‘criminal lunatics’ are revealing. As far as so-called “lunatic criminals” were concerned, psychiatrists endeavored to construct high institutional, bureaucratic, and professional thresholds to keep these individuals out of their institutions. One of the consequences of this psychiatric resistance was an internal diversification of penal facilities: forensic facilities tended to get built as wards in prisons rather than in asylums. In general, German psychiatrists were satisfied to see ‘lunatic criminals’ remain on psychiatric wards in prisons and did not encourage ‘outsourcing’ them to other more specialized or ‘hybrid’ institutions (Offizieller Bericht, 1903). Special asylums for “criminal lunatics” were another matter altogether. Here there was far more consensus within psychiatric circles and attitudes toward them were closely bound up with legal reform initiatives that sought to introduce the category of diminished responsibility (geminderte Zurechnungsfähigkeit) into the criminal code (Cramer, 1908; Kraepelin, 1904a). In 1898, for example, a new round of debates was unleashed after the Forensic Psychiatric Association in Dresden drafted legislation that reinstated the concept of diminished responsibility in criminal law and simultaneously urged the construction of such institutions. In subsequent years, similar calls emanated from many other quarters as well (Wetzell, 2000; Verhandlungen des Siebenundzwanzigsten, 1905). Psychiatrists joined these efforts as

Please cite this article as: Engstrom, E.J., Topographies of forensic practice in Imperial Germany, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.09.006

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part of a strategy to remove this class of offenders from the penal system. And in doing so they were deploying one of the oldest and proven strategies in the history of their profession and one that they lionized in the work of Philippe Pinel at the Salpêtrèire: liberating the mad from penal bondage. Yet, like reform of the criminal code itself, these hopes were never fully realized. The special asylums for so-called ‘criminal lunatics’ and ‘Minderwertige’ that some reformers envisioned were never built in Germany — not least because of the highly critical views held by many German penologists about Broadmoor. At the end of the day, what remained was institutional diversification within the penal system and ongoing tactical skirmishes for control over patient groups — skirmishes that psychiatrists were by no means winning outright. Liszt's 1908 diagnosis of pessimism and resignation was not unfounded. 4. Court ordered psychiatric examinations: the Untersuchungsgefangener In the jurisdictional contests outlined above, there was a third group that also modulated deliberations between psychiatrists and jurists. Like the other groups, this one too was a product of the criminal code: Article 81 (StPO) of the code stipulated that psychiatric experts, if called upon to submit an expert opinion to a court of law, could appeal to have the defendant committed for up to six weeks to a public asylum for observation. The number of individuals committed to asylums under Article 81 (so-called Untersuchungsgefangene) rose steadily from the time it became law in 1879: as a percentage of hospital admissions, one psychiatrist calculated rates of 2.37% (1880–91), 5.03% (1892– 1901) and 9.41% (1902–1906) (Kreuser, 1907). Administrative difficulties similar to those described above also arose in the case of Untersuchungsgefangene. German asylums were not legally required to admit these court detainees for observation (Offizieller Bericht, 1903; Sommer, 1910). And even if asylums did admit them, overcrowding and statutory provisions made the placement of court detainees unreliable. Here too, the costs of care became the subject of negotiations between varying state ministries and local or provincial authorities. Special difficulties arose if courts sought to place defendants under observation not in prisons or asylums, but in university clinics. Could defendants be used for teaching and demonstration purposes? And if so, were courts — rather than universities or welfare agencies — obliged to cover the expenses? Regulatory responses to such questions varied widely throughout the German Empire. Nevertheless, in some asylums, Untersuchungsgefangene were a highly valued patient commodity, especially because of the fees that could be charged for examining them (Weygandt, 1907). One of the arguments advanced against special hybrid institutions was that, in so far as they also assumed responsibility for court-ordered examinations, they would remove these valuable patients from existing asylums (Offizieller Bericht, 1903). And in fact, as penal institutions diversified, psychiatrists had good reason to worry that courts would not avail themselves of psychiatric services at all, but instead turn to prison or court doctors to examine defendants placed on psychiatric wards in prisons (Müller, 2004). But Untersuchungsgefangene were valuable not only for the fees that they generated, but also for their medical, diagnostic, and scientific characteristics — for example as borderline cases. In an article addressed to a meeting of Bavarian psychiatrists in 1911, the Viennese psychiatrist Erwin Stransky insisted that forensic psychiatry — far from being merely a branch of applied psychiatry — also had real contributions to make to clinical psychiatry. It was not so much the exotic and difficult cases, but rather the more mundane, run-of-the-mill forensic examinations that offered up valuable insight for clinical practice. Indeed, Stransky viewed forensic experience as a “necessary” complement to “clinical and asylum practice” (Stransky, 1911). Another Bavarian psychiatrist maintained that preparing forensic reports provided otherwise overburdened asylum doctors with the rare, but “highly instructive”

opportunity for “in-depth assessment of individual patients” (Wagner, 1907). As penal facilities expanded and psychiatric diagnoses became more sophisticated (blood tests, psychological measurements, etc.), it seems that psychiatrists began to insist on closer ties between forensic and clinical practice. Because they were not psychiatric hospitals, penal facilities were criticized for being unable to bring the full regime of diagnostic technologies to bear on the patient. This prompted some observers to call for more extensive medical facilities within prison annexes (Sommer, 1910). But in disputes over Untersuchungsgefangene, such attempts to draw clinical and forensic practice more closely together also privileged the expertise generated within psychiatric hospitals and laid the work of prison medical staff open to criticism. Appeals to scientific expertise were also an effective strategy of university hospitals in their attempts to secure jurisdiction over this group of patients. A case in point is the city of Munich, where in 1904 a new university psychiatric hospital had opened (Engstrom, 2001). Upon the arrival of the clinic's new director, Emil Kraepelin, he found that local courts were continuing to send defendants to the old asylum to be examined, and not to his new clinic. In a letter to state officials, Kraepelin complained about this practice, arguing that especially important and subtle forensic cases should be sent to his hospital. The response of the Ministry of Justice is instructive for what it says about the jurisdictional limits of psychiatric expertise. Far from advising local courts to have their Untersuchungsgefangene sent to the new university clinic, they advised Kraepelin that it lay within the discretion of judges to determine whether and to which asylum defendants would be committed under Article 81. In other words, Kraepelin would have to win over local judges and wean them of their habit of having defendants examined by other medical officials if he wished to treat forensic cases in his clinic (Burgmair et al., 1999-2013). The ability of Kraepelin and other German psychiatrists to do just that and thereby to influence legal decision-making processes depended on many factors that ultimately shaped the contours of forensic practice and that comprised the cultural machinery of their forensic jurisdictions. For the remainder of this article, I will briefly sketch two such factors: the status of psychiatric expertise in the courtroom and the forensic psychiatric training programs and societies. 5. Psychiatric expertise in the courtroom According to one recent study on the history of criminology in Germany, the influence of psychiatric expertise in the courtroom had become so great over the course of the nineteenth century, that it threatened to usurp the “monopoly” that legal professionals held in the field of criminal justice (Müller, 2004). Although compared to England (Eigen, 1995; Smith, 1981) there has been very little research on German psychiatrists' courtroom expertise, to judge by the discontent of many psychiatrists at the time, one can plausibly question this claim. One of the more ubiquitous complaints of psychiatrists in Germany — and no doubt elsewhere as well (Guarnieri, 1991) — was that their expertise was insufficiently accounted for, simply ignored, or even disdainfully dismissed in court. Psychiatric journals and correspondence from the period are littered with lamentations about both judges and juries mistrusting or dismissing psychiatric expertise (Alzheimer, 1913; Klemperer, 1898). Although changes in procedural law had opened opportunities for greater use of psychiatric experts in the 1880s, neither juries nor judges were legally compelled to accept the expert opinions voiced by psychiatrists during court proceedings. In most respects, the authority (or lack thereof) of psychiatric expertise in court was not so much grounded in code, as it was in psychiatrists' standing in the public mind's eye, and in the reliability of their diagnostic and prognostic regimes. By some accounts, psychiatrists had only themselves to blame for their low standing in the eyes of judges, juries and the general public (Kraepelin, 1904b). For the courtroom situation had often made

Please cite this article as: Engstrom, E.J., Topographies of forensic practice in Imperial Germany, International Journal of Law and Psychiatry (2013), http://dx.doi.org/10.1016/j.ijlp.2013.09.006

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psychiatrists painfully aware of the shortcomings in their own medical science. The imprecision of psychiatric diagnoses contrasted sharply with that of other medical specialties and technical sciences. In one of the most trenchant critiques of Wilhelmine judicial practice before World War I, the Berlin trial lawyer Erich Sello lambasted experts and courts alike for their failure accurately to recognize and diagnose psychiatric illnesses (Hett, 2004; Sello, 1911). Experts were often led astray by the enormous divide separating psychiatric nosology, with its multitude of borderline disorders, and a criminal code that recognized no such distinctions. All too often they were inclined to fit the law to their science, rather than their science to the law (Mendel, 1906). Furthermore, the semi-public forum of the courtroom lent itself to the exposure of intra-professional rivalries that cast an unseemly light on psychiatric practice. And in a more general sense, the consistently low esteem in which psychiatrists were held, compromised trust in their forensic judgments in spite of the explosion of interest in nervousness and psychological themes in turn of the century Germany (Cramer, 1905; Engstrom, 2003; Goldberg, 2002; Schmiedebach, 1996). Aside from a host of self-inflicted liabilities, psychiatrists also saw numerous other factors that undercut their authority in the courtroom. For example, according to one observer, juries tended to discount the expertise of psychiatrists out of concern for public safety. For if, on the basis of a psychiatric opinion, a defendant was found to be not accountable according to Article 51, then the prospect of the case being dismissed and the defendant walking free loomed large. In many such cases, the “psychology of the jurors” led them to ignore psychiatric opinion, preferring to see the mentally ill defendant convicted rather than set free (Sommer, 1908). In addition, psychiatrists believed that their authority in court was undermined by the fact that the code, in the event of acquittal on grounds of Article 51, made no provision for detaining the defendant based on their current state of mind. As a consequence of these failings, some psychiatrists called on courts to impose measures to protect public security by having the acquitted defendants committed to an asylum or by transferring the defendant from the jurisdiction of the criminal court to that of other administrative or civil courts (Entmündigungsverfahren) (Lobedank, 1908).4 Jurists objected to such concerns on the grounds that “in dispensing justice the courts could not assume the duties of the police” (Kreuser, 1907). Additional concerns were raised because defendants whom Article 51 had absolved of responsibility did not necessarily meet the criteria for admission to the local psychiatric hospital. For their part, judges were not necessarily any more inclined than juries to accept psychiatric expertise. They had long been frustrated by the incompetence of many court-appointed physicians when it came to psychiatric evaluations. At the same time, by its very nature, psychiatric expertise involved judgments about human motivation and conduct, and as such represented a deep intrusion into what had traditionally been considered to lie within the discretionary sphere of judges. This made it that much easier, compared with other types of expertise, for judges to dismiss psychiatric opinion altogether. Furthermore, because in German courts it was first and foremost the judge's responsibility to call for an expert opinion on the mental state of a defendant, widespread suspicions that defendants simulated mental illness in order to escape conviction often resulted in psychiatric experts never being called to the court in the first place (Kraepelin, 1904b). Increasingly after 1900, psychiatric expertise was also coming to be challenged by forensic psychologists (Mülberger, 2009). Responding in part to the sharp public criticisms of psychiatry and the courts in the 1890s, criminal psychologists exploited their experimental methodology to measure the mental abilities of defendants and witnesses alike. Their use of statistical techniques and intelligence testing attracted the 4 At the same time, however, psychiatrists also complained that when defendants were acquitted and immediately thereafter committed to an asylum, therapy was made more difficult because of patients' confusion and resentment at having been, on the one hand, acquitted in court, and on the other, interned in a psychiatric institution (Kreuser, 1907).

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attention of many contemporary jurists, and were even explored in the seminars of the prominent criminal law reformer Franz von Liszt in Berlin. As Annette Mülberger (2009) has argued: “By putting findings obtained with the help of these research techniques in relation to problems in law, psychologists offered legal experts and judges a new way of arguing juridical matters.” For critics like Erich Sello, forensic psychology was even deemed to be the “queen of the criminalistic sciences” (Hett, 2004). Much historical research still needs to be done into the status of psychiatric expertise in the courtroom. In his study of court records in the Swiss canton of Bern, however, Urs Germann has demonstrated that recognition of psychiatric expertise was highly contingent upon situative factors and decision-making processes that were largely governed by the legal framework of the cases at hand. At the same time, however, Germann (2003) demonstrates how, as a consequence of day-to-day courtroom interactions and learning-processes, a convergence of interests emerged between psychiatrists and jurists that contributed to the “psychiatrization of delinquence.” Furthermore, Germann sees larger discourses on criminology and criminal law reform playing a crucial role in sensitizing jurists to the problems of trying cases involving mentally ill defendants. Such sensitization or “popularization” involved greater recognition both of the non-accountability of mentally ill defendants and of the professional expertise that psychiatrists brought to the courtroom (Germann, 2003). 6. From the courtroom to the classroom: forensic psychiatric training programs Aside from daily courtroom experience, one of the most widespread instruments used to raise awareness about forensic psychiatry among jurists, penal officials, and practicing physicians were special forensic courses. From the late 1890s, such courses became a regular feature of the jurisdictional topography between psychiatry and jurisprudence. After Emil Kraepelin had failed in his efforts to have local courts in Munich send him defendants to examine under Article 81, he instigated a training program in forensic psychiatry at his clinic (Engstrom, 2001; Kraepelin, 1904b; Weygandt, 1908). He quickly secured support for the program from the Ministry of Justice, which encouraged all Bavarian judges to take advantage of the program. Beginning in the winter of 1905, Kraepelin offered lectures to judges and penal officials, expounding on the difficulties faced by psychiatrists in forensic cases. As Kraepelin originally described them, the courses were designed to explore particularly difficult borderline psychiatric cases. Each case was assigned to two participants, a psychiatrist and a judge respectively, who then worked up the case and reported on their findings to the class. The reports were based on the files as well as the physical examination and/or interview with the proband. There ensued a wide-ranging discussion of the legal and psychiatric aspects of the case. When Kraepelin first offered these courses, he was swamped with applications and had to turn most prospective participants away. But the experience convinced him that the most fruitful manner in which to organize continuing-education programs in forensic psychiatry was to bring psychiatrist and doctors together, not in the charged atmosphere of the courtroom, where pressures of time and procedural protocol prevented an open exchange of views, but rather in the classroom. Kraepelin differentiated clearly between three different levels of inter-professional exchange between psychiatry and jurisprudence. Although he had tried such courses for law and medical students, he found students so over-taxed by their studies and so lacking in courtroom experience that the courses made little sense. At best, they might be useful for advanced students who were preparing for their licensing exams as state physicians or judges. It was instead at a second, more advanced level that Kraepelin envisioned the courses having their greatest impact: they were ideally suited for practicing judges and psychiatrists. He stressed that the best way to overcome the practical difficulties facing forensic psychiatry, was

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for judges and psychiatrists to come together in such courses and explain their respective viewpoints to one another (Kraepelin, 1904b). At a still more advanced, third level, Kraepelin saw specialists in the field of forensic psychiatry using local forensic societies to exchange viewpoints and learn from one another. Kraepelin was certainly not the only or even the principal driving force behind the development of such didactic interfaces. In the years prior to World War One, university curricula, formal training programs, and forensic professional associations were evolving in cities throughout Germany. For the remainder of this paper I will therefore briefly sketch these three interstitial spaces in the topography of relations between psychiatry and jurisprudence — spaces in which psychiatrists and jurists were ‘sensitized’ to viewpoints and problems of their respective professional others. Training in forensic psychiatry at German medical faculties was rudimentary at best prior to 1914. Before the expansion of criminology in the final decades of the century and the emergence of specialists, courts would more often than not call on general practitioners rather than forensic experts to judge psychiatric cases. In the 1850s and 1860s, the inexperience of these medical experts was a topic of heated debate and a crucial argument advanced by alienists in an effort to have psychiatry recognized as a medical specialty. Indeed, one of Germany's earliest, albeit short-lived professional psychiatric association was heavily committed to advancing the cause of forensic education (An die Leser, 1858; Erlenmeyer, 1858). In 1858 the psychiatric section of the German Society of Natural Scientists and Physicians had set down guidelines (Carlsruher Thesen) designed to enhance the standing of psychiatric experts in court. Such demands fueled calls for greater emphasis on forensic psychiatry in medical curricula. And indeed, more stringent licensing criteria were imposed, but only on prospective state physicians, who were generally required to work for several months in a mental asylum before they could sit for their exams. By contrast, the reform of general medical licensing exams in 1901 made no specific provision for forensic psychiatry and by 1910 there were still only two chairs in forensic psychiatry at German universities, one in Giessen and the other in Heidelberg (Boas, 1916; Sommer, 1910; Weygandt, 1908). Calls also abounded for better university training in forensic psychiatry at law faculties. Legal reformers such as Franz von Liszt had sought to expand the curriculum in law to include forensic psychiatry, arguing that law students were often poorly informed about many relevant articles of code and recent decisions of Germany's Imperial Court (Reichsgericht) (Liszt, 1889). Liszt's Kriminalistisches Seminar in Berlin was designed to address precisely such deficits in academic training (Liszt, 1901). Although courses in forensic psychiatry were offered at the law faculties of many German universities, like their counterparts in medical faculties they were not obligatory (Aschaffenburg, 1903; Sommer, 1908; Weygandt, 1908). Critics also claimed that the courses were too theoretical and failed to provide students with insight into the practical work of psychiatrists and prison officials (Aschaffenburg, 1903; Kraepelin, 1904b). Occasionally, however, law faculties had gone so far as to support the construction of local psychiatric asylums, stressing that they would help train law students in forensic science (Siemerling, 1901). Along these same lines, various jurists and criminologists had even called for so-called Verbrecherkliniken, i.e., didactic or clinical demonstrations of criminals in front of an audience of students (Aschaffenburg, 1914). And officials in the state of Hesse hoped that the construction of a ward for the criminally insane would ensure that patients could be used for demonstration purposes in university courses (Vanja, 2003). Given the daunting obstacles standing in the way of the practical instruction of university students, advocates looked instead to postgraduate and continuing-education programs to advance the cause of forensic psychiatry. In several cities throughout the country, psychiatrists organized such programs for jurists, state physicians, and prison doctors.

In Berlin, for example, lectures on “Psychopathology and Psychology” were offered to all judges and district attorneys. Sometimes such courses included clinical demonstration of forensic cases that had been hospitalized under Article 81 or, lacking such patients, of “ambulatory material”, i.e., patients drawn from out-patient facilities (Weygandt, 1908). Aside from Kraepelin's account of his courses in Munich, one of the most detailed descriptions we have of such training programs comes from Giessen. The courses there were organized by the local professor of psychiatry, Robert Sommer, and were first offered in the fall of 1907, drawing some 130 participants from across the entire German Empire (Dannemann, 1908). Sommer had convinced several governments in Germany and Austro-Hungary to encourage their judges to attend the courses, in some cases even providing them with subsidies to cover their expenses. After the first of these courses, the program materials — including extensive articles on a variety of forensic topics— were published and distributed to participants. One of the complaints about such programs was that they only encouraged a kind of “medical pseudo-knowledge” among judges (Sommer, 1910). Participants in the training programs, it was argued, would simply be more emboldened than ever to make their own judgments on psychiatric matters, without feeling the need to call for an expert opinion at all. Kraepelin for one, however, discounted such concerns, claiming that with greater knowledge and experience also came greater doubt and uncertainty, so that judges would ultimately be more inclined to call for a psychiatric opinion (Kraepelin, 1904b). He was not only convinced, but could also point to tangible evidence that, by raising awareness about the complexities of psychiatric science, judges would be more inclined to hear and accept psychiatric expertise in the courtroom. Such forensic psychiatric courses stood alongside a third, more traditional forum of exchange between jurists and psychiatrist: professional organizations. Various national societies provided forums of debate on forensic psychiatry: the German Society for Psychiatry and Forensic Psychology, the Society of German Alienists, the Deutsche Juristentage, the Association of German Medical Officials, to mention but a few. Perhaps even more important were the many local forensic societies. Throughout Germany in the latter years of the nineteenth century, numerous such organizations had been founded.5 The forensischpsychiatrische Vereinigung in Munich even met in Kraepelin's clinic (Kraepelin, 1983). And in Berlin, the Freie Gerichtsärztliche Vereinigung was founded in 1903 and occasionally met in joint session with the local society of alienists (Feger, 1982). Organizations such as these represented important mediating forums at which local judges and psychiatrists came together to negotiate differences and debate common interests. We know next to nothing about these local societies and their modus operandi. But we can assume that they represented important sites in the jurisdictional topography of forensic psychiatry.

7. Conclusion At the beginning of the twentieth century, some observers deemed psychiatry's links with jurisprudence to be its most important and significant inter-professional relationship (Stier, 1905). And in fact, German psychiatrists were called upon in increasing numbers to testify in court. Furthermore, the number of convictions that went against the judgments expressed by psychiatric experts was on a downward trend (Kreuser, 1907). By some accounts, these developments represented an expansion of psychiatric jurisdictions into the sphere of judicial process. At the same time, however, the hopes of nineteenth and early twentieth 5 To mention but a prominent few, the Forensisch-Psychiatrische Vereinigung zu Dresden (1894), the Göttinger Psychologisch-forensische Vereinigung (1902), the Forensisch-Psychologische Gesellschaft in Hamburg (1910), the Vereinigung für gerichtliche Psychologie und Psychiatrie (GHZM Hessen), the Kriminalistische Sektion des AkademischJuristische Vereinigung München (1884), and the Versammlung württembergischer Juristen und Ärzte in Stuttgart (1904).

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century psychiatrists and legal reformers to see legislation passed that would have aligned the German criminal code more closely to the findings of contemporary forensic psychiatry were repeatedly dashed. Hence, studies that consider only legislative initiatives and parliamentary debates will fail adequately to capture the complexities and many contingencies that governed the inter-professional relationship between psychiatry and jurisprudence and that shaped the practice of forensic psychiatry in Germany at the turn of the century. Accordingly, this article has surveyed a much broader landscape across which the competing jurisdictional claims to perform forensic work can be more subtlety addressed. Rather than focusing chiefly on the higher climes of theoretical discourse and parliamentary debate, I have sketched a map of some of the lower climes — the swamps of inter-professional practice, if you will — where the daily work of forensic psychiatrists took place. It will take considerably more and detailed studies of these lower climes before we can arrive at any fuller assessment of the extent and limits of forensic psychiatry's influence on twentieth century German jurisprudence. Acknowledgments Partial support for the research and writing of this article was provided by the Deutsche Forschungsgemeinschaft. References Abbott, A.D. (1988). The system of professions: An essay on the division of expert labor. Chicago: University of Chicago Press. Alzheimer, A. (1913). 25 Jahre Psychiatrie: Ein Rückblick anlässlich des 25jährigen Jubiläums von Professor Dr. Emil Sioli als Direktor der Frankfurter Irrenanstalt. Archiv für Psychiatrie und Nervenkrankheiten, 52, 853–866. An die Leser (1858). Correspondenz-Blätt der deutschen Gesellschaft für Psychiatrie und Gerichtliche Psychologie, 5, 1. Aschaffenburg, G. (1903). Das Verbrechen und seine Bekämpfung: Kriminalpsychologie für Mediziner, Juristen und Soziologen, ein Beitrag zur Reform der Strafgesetzgebung. Heidelberg: Carl Winter. Aschaffenburg, G. (1912). Die Sicherung der Gesellschaft gegen gemeingefährliche Geisteskranke. Ergebnisse einer im Auftrage der Holtzendorff-Stiftung gemachten Studienreise. Berlin: Guttentag. Aschaffenburg, G. (1914). Verbrecherkliniken: Ein Vorschlag zur psychologischen Ausbildung der Strafrichter. Mitteilungen der Internationalen Kriminalistischen Vereinigung, 205–223. Becker, C. (1896). Zur Gegenwärtigen Lage des Irrenwesens in Bayern. Münchner Medizinische Wochenschrift, 43, 369–371 (399–400). Becker, P. (2002). Verderbnis und Entartung: Eine Geschichte der Kriminologie des 19. Jahrhunderts als Diskurs und Praxis. Göttingen: V&R. Becker, P. (2004). Strategien der Ausgrenzung, Disziplinierung und Wissensproduktion: Überlegungen zur Geschichte der Kriminologie. Geschichte und Gesellschaft, 30, 404–433. Boas, K. (1916). Zur Frage des forensisch-psychiatrischen Unterrichtes an Universitäten. Archiv für Kriminologie, 67, 95–102. Bonhoeffer, K. (1899). Irrenabteilungen an Gefängnissen. Monatsschrift für Psychiatrie und Neurologie, 6, 231–234. Burgmair, W., Engstrom, E. J., & Weber, M. M. (Eds.). (1999–2013). Kraepelin Edition. Munich: Belleville. Cramer, A. (1905). Über Gemeingefährlichkeit von ärztlichen Standpunkte aus. Halle: Marhold. Cramer, A. (1908). Psychiatrische Wünsche zur Strafprozeßreform. Allgemeine Zeitschrift für Psychiatrie, 65, 508–514. Dannemann, A. (1908). Bericht über den internationalen Kurs der gerichtlichen Psychologie und Psychiatrie zu Giessen, 15.–20. April 1907. Klinik für Psychisch und Nervöse Krankheiten, 2, 689–773. Dickinson, E. R. (2010). Not so scary after all: Reform in Imperial and Weimar Germany. Central European History, 43, 149–172. Eigen, J. (1995). Witnessing Insanity: Madness and mad-doctors in the English Court. New Haven: Yale University Press. Engstrom, E. J. (2001). Der Verbrecher als Wissenschaftliche Aufgabe: Die kriminologischen und forensischen Schriften Emil Kraepelins. In W. Burgmair, E. J. Engstrom, & M. Weber (Eds.), Emil Kraepelin. Kriminologische und forensische Schriften: Werke und Briefe (pp. 353–389). Munich: Belleville. Engstrom, E. J. (2003). Clinical psychiatry in Imperial Germany: A history of psychiatric practice. Ithaca: Cornell University Press. Erlenmeyer, A. A. (1858). Rechenschaftsbericht über die ersten 5 Jahre der Gesellschaft. Correspondenz-Blatt der Deutschen Gesellschaft für Psychiatrie und Gerichtliche Psychologie, 5, 145–148. Feger, G. (1982). Die Geschichte des ‘Psychiatrischen Vereins zu Berlin,’ 1889–1920. (Unpublished Medical Dissertation). : Free University of Berlin. Frommel, M. (1991). Internationale Reformbewegung zwischen 1880 und 1920. In J. Schönert (Ed.), Erzählte Kriminalität: Zur Typologie und Funktion von narrativen

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