Sentenced in May, deferred for six months, dead in July

The story

A suspect in the Berlin Pride attack was shot and killed during a police operation on Sunday night. Abdul Ballout, 21, a German citizen of Lebanese background, was wanted by police after a van and machete attack near the event on Saturday night left one person dead and 29 injured. German media reported that he was tracked to an allotment garden complex in the Berlin suburb of Spandau, where he was shot and killed by police. A second suspect, a man with Iranian citizenship who was allegedly in the van, was arrested on Sunday night. Eight victims remain in hospital fighting for their lives. German interior minister Alexander Dobrindt said everything pointed to an Islamic terror attack, and said Ballout had spent time in jail and had come to the authorities' attention because of radicalisation and belonging to the Islamist scene in the German capital. It was reported that Ballout was sentenced to 22 months in jail in May for preparing a serious act of violence endangering the state, but that the decision was deferred for six months. He had allegedly travelled to Lebanon via Turkey last year with the intention of heading to Syria and joining Islamic State. The closing party of the Pride festival was taking place next to the Brandenburg Gate when the attack happened at around 10pm; the event was called off around fifteen minutes later.

The reframe

The second suspect has been arrested and nothing here concerns him. What this entry is about is a single line in the reporting of the first: sentenced in May to 22 months, decision deferred for six months.

That is not a failure of the German legal system in the sense of something going wrong. It is the system operating as designed. A court considered an offence described as preparing a serious act of violence endangering the state, arrived at a custodial term, and then suspended the operation of that term for a defined period. Deferral of this kind exists in most European jurisdictions, including this one, and it exists for reasons that are usually good. Courts do not want to imprison people who can be managed in the community. Prison capacity is finite. Rehabilitation is more likely outside than inside. Each of those propositions is defensible, and taken together they explain why a sentence can exist on paper and not exist in a person's daily life at the same time.

What the case makes visible is that these are two separate things, and that the gap between them is where the discretion sits. The offence was found. The penalty was set. The activation of the penalty was a further decision, taken on grounds that were not the same as the grounds for the conviction, and it went the other way. For six months the sentence was real in the record and absent in effect. That is the distinction the book keeps returning to: the difference between a rule that exists and a rule that is running.

The temptation here is to argue that the deferral was wrong, and to reason backwards from Saturday night to say so. That reasoning is not available. The court in May did not know what would happen in July, and a system that deferred sentences only in cases that turned out well would not be exercising judgement at all, it would be exercising hindsight. Thousands of deferred sentences pass without incident every year and generate no reporting, which is why the practice is invisible until the day it is not. The honest observation is narrower and more uncomfortable. A category of decision that is taken quietly, routinely, at volume, and without public visibility turns out to carry consequences that the public was never invited to weigh, and the only cases that ever surface are the ones where the consequence was catastrophic. The rest of the distribution stays out of sight.

The same point applies to the other detail in the interior minister's account. Ballout was known. He had spent time in jail, he had come to official attention for radicalisation, and he had allegedly attempted to travel to Syria to join Islamic State the year before. Being known to the authorities is not a status that produces any particular consequence in itself; it is a file. Whether that file is acted on, and how, is a resourcing decision taken inside institutions that hold far more files than they have capacity to act on. Germany will now conduct a review, and the review will report, and the finding will almost certainly be that the information existed in several places and was not assembled into a decision. That finding is made after almost every attack of this kind, in almost every country, and its regularity is what makes it worth recording rather than what makes it dismissible.

What sits behind both details is a single structural fact. The state had a rule available against this man and chose, lawfully and for ordinary reasons, not to activate it. It is the same mechanism examined in the entry of 24 July on the early release scheme paused after public fury over one case: a policy that was general on paper and conditional in operation, where the condition was never stated because stating it would remove the discretion that made it useful.