Law for the Imposition and Implementation of the Death Penalty
(Lex van der Lubbe)
March 29, 1933
The Nazi state enacted the Law for the Imposition and Implementation of the Death Penalty on March 29, 1933, just a month after the Reichstag fire. Its first stipulation made a key article of the Reichstag Fire Decree-that which changed the punishment for certain crimes such as arson and high treason from life in prison to the death penalty-retroactive to the beginning of Hitler's assumption of power, thus violating the ex post facto rule of law and ensuring that those who were accused of setting fire to the Reichstag would be executed if convicted. The second article allowed the execution itself to be carried out by hanging, considered a harsh and shameful mode of execution, in place of beheading.
In fact, Hitler pressed for this law, also known as Lex van der Lubbe, for purely political reasons. He insisted upon the death penalty to underscore the legitimacy of the regime's claim that the fire had been an act of rebellion against the state. This was all the more important since Hitler had used the fire to declare a state of emergency. This in turn allowed him to abolish many longstanding constitutional guarantees. Working backward, the execution of the alleged perpetrators of the Reichstag arson would justify to the public the extreme measures that the Nazi regime had put into place.
The Supreme Court's decision in the case reveals the ambivalence and complexity of its role in the new Nazi regime. On the one hand, the court found Marinus van der Lubbe guilty and permitted his hanging, accepting the unilateral changes to the constitution that Hitler's government had enacted. On the other hand, it found van der Lubbe's codefendants not guilty of the crime of arson, rejecting the notion of “political necessity” as an overriding factor in deciding the verdict. In this regard, the court declared that it would not be used to stage politically important show trials. An outraged Hitler removed jurisdiction
for political crimes from the Supreme Court and established the so-called People's Court (Volksgericht) in Berlin instead, appointing Nazi judges to the bench to ensure the outcome of such cases in the future.