The United States Supreme Court is making “politically influenced history.” So are courts in other countries. I have researched how the German courts made Hitler and the Holocaust possible. It should remind us to be critical of court decisions that are based on political opinions.

How Courts Made the Holocaust Possible Ninety Years Ago

Letting a Terrorist Get off Easy

By distorting the law on three points, the German court system issued on April 1, 1924, a verdict that changed history and led to the Holocaust as well as other horrible crimes and cruelties. It may be the incident where bending the law had the worst consequences in human history.

On November 8, 1923, Adolf Hitler and a band of thugs had attempted a coup d’état to overthrow the German government, during which four policemen were killed. It failed and Hitler was arrested. This was clearly an act of terrorism and Hitler should have been tried accordingly. The “Law for the Protection of the Republic” (Republikschutzgesetz) of 1922 required that an alien be deported after an attempted revolt. Accordingly, the Attorney General in Munich, Oberstaatsanwalt Stenglein, requested the deportation of the Austrian citizen Hitler. Yet the court declared Hitler “a German because of his feelings” (gefühlter Deutscher), despite his Austrian nationality. Hitler was praised for having fought in the German army. He was not deported and thus was allowed to build the Nazi movement in Germany.

The law also required Hitler to be tried for high treason at the Staatsgerichtshof in Leipzig, where he should have expected a severe penalty, even the death penalty. The prison psychologist Alois Maria Ott reported later that Hitler asked for a pistol in order to be able to commit suicide to avoid the death penalty.

However, due to local political influence, it was arranged that Hitler would not be sent to the national court but rather be tried at the Landesgericht in Munich, which was more lenient to Nazi ideas. Hitler was on probation from a previous incident for which he had been given three months jail. This appears not to have been brought up during the trial.

Three professional judges and three lay judges bent the law. Instead of being sentenced as a terrorist, he was given only five years “honorable” incarceration (fünf Jahre ehrenvolle Festungshaft), a probation penalty from which he was released after eight months. Although the sentencing should have been signed by two professional judges, only one signed the verdict.

Thus the law was broken at three points, making it one of the most important cases in history in which judges broke the law with disastrous consequences. During the honorable incarceration, Hitler was given the opportunity to write his party platform “Mein Kampf.” The rest is history.

My research was based on:

  1. Glaser, Hermann, “Adolf Hitlers Hetzschrift “Mein Kampf”, Ein Beitrag zur Mentalitätsgeschichte des Nationalsozialismus, Allitera Verlag, München., to be published April 2014 (this article is based on a pre-publication copy)
  2. Gebit, Helga, Der Nationalsozialismus, München, 1959, page 53
  3. Volker, Ullrich, Adolf Hitler, Biographie, Bd.1: Die Jahre des Aufstiegs, Frankfurt, 2013
  4. Deuerlein, Ernst, Bayerische Dokumente zum 8./9. November 1923. Quellen und Darstellungen zur Zeitgeschichte, Bd. 9, Stuttgart 1962
  5. Dornberg, John, Hitlers Marsch zur Feldherrnhalle München, 8. Und 9. November 1923, München 1983
  6. Gutschneider, Otto, 1. April 1924. Urteilsverkündung im Hitler Prozess, Süddeutsche Zeitung, 31.3./1.4.1994
  7. Gordon Harold, Hitlerputsch 1923. Machtkampf in Bayern. München 1979
  8. Grätschender, Otto: Bewährungsfrist für den Terroristen Adolf H.. Der Hitler-Putsch und die bayerische Justiz. München 1990
  9. Hofmann, Hanns Hubert,: Der Hitler Putsch. Krisenjahre deutscher Geschichte 1920-1924, München 1961
  10. Sigmund, Anna Maria: Als Hitler auf der Flucht war, Süddeutsche Zeitung 8./9.11.2008
  11. 11. Zank, Wolfgang: Milde Strafe für einen Terroristen. Der Prozess gegen Hitler, Ludendorf & Co 1924, Die Zeit, 1.4.1994