
Land without Plea Bargaining: How the Germans Do It (1979) - rfugger
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1532&context=fss_papers
======
Xylakant
Though IANAL, some notes about this article:

* Please keep in mind it's from 1979. Some things have changed considerably.

* The Schöffengericht (1 Judge, 2 Laymen) is only the lowest level of courts (Amtsgericht, probably a district court) and the higher levels are composed of professional judges only. Any crime that has an expected punishment of more than 4 years is judged by professional judges only.

* Some trials may skip the first step on the appeal ladder and go directly to the Landgericht.

* We have our own version of the plea bargain since 2009 (Verständigung im Strafverfahren). Arguments for the plea bargain are pretty much the same as in the USA: Some trials tend to get very complicated, especially cases with financial background where laws and regulations are complicated to understand for non-experts. Lately there have been discussions about wether to remove or modify the plea bargain, fueled after a series of appeals against plea bargains [1].

* In some circumstance a confession may be beneficial for the defendant, reducing the fine or prison time. This is especially true when the defendant supports the prosecution of other defendants in the same or a related trial (Kronzeugenregelung). This sometimes leads to pressure to confess a crime the defendant has not committed.

[1] German, sorry: [http://beck-aktuell.beck.de/news/bverfg-uebt-deutliche-
kriti...](http://beck-aktuell.beck.de/news/bverfg-uebt-deutliche-kritik-am-
deal-in-strafprozessen)

~~~
rbehrends
While some things have indeed changed since 1979, it is not accurate that any
crime for which a punishment of more than four years is expected is handled by
professional judges only.

Aside from magistrate judges (Amtsrichter), the only case where a German court
sits in a criminal case as a trial court without a lay judge are the OLGs
(superior state courts). This happens only if the crime is a war of
aggression, treason, or creation of a terrorist organization.

(Not that there's anything wrong with courts that do not have jurors or lay
justices -- the Netherlands seem to be doing fine without either.)

Crimes where the expected punishment is more than four years are tried before
the penal senates of the regional courts (Landgerichte). They are composed of
either one professional judge and two lay judges (Kleine Strafkammer) or three
professional judges and two lay judges (Große Strafkammer). The Große
Strafkammer can also sit with two professional and two lay judges if the case
isn't too complicated.

(Incidentally, the idea of lay judges originated in Sweden. Germany adopted
the model in the 1920s as part of the so-called Emminger Reform [1]).

[1] <http://en.wikipedia.org/wiki/Emminger_Reform>

~~~
com
The Netherlands might not be doing as well as you might think.

Things like the Chipshol debacle in the Netherlands shows that there is strong
evidence of judicial collusion in a series of court cases -
<http://en.wikipedia.org/wiki/Chipshol> has a very superficial summary of
something that I found quite shocking, involving public accusations of
corruption, perjury, where one of the ex-judges involved was forced out as
head of the Dutch anti-trust authority when it all blew open.

Judges and lawyers seem to come from the same social circles, have gone to the
same universities, members of the same clubs and so on. To access the
conveyor-belt of promotions and opportunities, it is not inconceivable that a
culture of "scratch my back, and I'll scratch yours" in a part of a small
legal and judicial community in a small country could form.

A system in which lay-people are involved may have to work a lot harder to
pretend that biased judgements are fair.

------
nikcub
There are three very dangerous tools that US prosecutors have available to
them that are uncommon in the rest of the world:

* the plea bargain

* RICO ('conspiracy' charges)

* FISA warrants + probable cause

combined you could almost charge anybody with anything to make them appear
guilty and plead down to shorter sentences. Read the indictments of Swartz,
FullTiltPoker, Gary McKinnon, Megaupload, Lakhani, etc.

~~~
rdl
The only reason RICO hasn't caused huge public outcry is that most of the
victims are "bad people" -- John Gotti, other gangsters, etc. It's a sad fact
of law that judges convict bad people on bad laws.

FISA has also mainly been used against "bad people" so far. It's really hard
to defend a likely terrorist in the court of public opinion.

I'm not sure how many of these need to be in the toolbox to outmatch any
defendant (including the innocent or substantially innocent) -- plea bargains
seem adequate on their own in some cases, since as we saw with aaronsw, you
can credibly threaten huge punishments even without RICO. But with RICO, you
don't even need to go to the plea bargains.

~~~
bane
RICO also has a substantial civil portion. See the Palantir vs. I2 lawsuit.

~~~
rdl
I'd forgotten about that. Big company vs. big company is rarely going to get
public outcry either, though (the Samsung v. Apple patent stuff was about the
closest I've ever seen)

------
BjoernKW
While insightful two aspects have to be noted. First, Germany doesn't have a
common law system. German and UK / US / Commonwealth legal systems are mostly
incompatible. Secondly, nowadays the German system has efficiency problems as
well, which however are mostly due to inefficient organization that affects
all of German public administration.

There is no such thing as plea bargaining or threatening the defendant with
much more severe charges than those he'd actually have to expect when going to
trial.

However, frequently bargains are made to expedite legal procedures. The
defendant might for example be talked into making a full confession in
exchange for a less severe sentence. While this is not as questionable a
practice as plea bargaining it certainly leaves some space to bullying or
coercing defendants as well.

Maybe, it'd be good to look at how the UK legal system works in that respect.
It's mostly compatible with the US system but doesn't sport excessive plea
bargaining.

~~~
azernik
I'm not sure how much the UK is a good counterexample; the author of this
paper seems to treat is as more similar to the United States than to the civil
law systems like Germany (he commonly refers to the "Anglo-American" practice
of plea-bargaining). Indeed, he holds up the UK's high rates of plea
bargaining as proof that the cause of the oddities of the American system is
the adversarial trial procedure that characterizes common law systems.

~~~
cmdkeen
Plea bargaining in the UK is very different though, the bargain is around
pleading to some charges to get others dropped - with the judge determining
the sentence.

And with sentencing guidelines published for all common offences the
prosecutor is not able to threaten you with massive sentences because you (or
your lawyer) can know what the likely outcome is. For a first time offender
the odds of jail for almost any offence is low.

The quality of legal representation provided, especially in trials facing
major jail time is significantly better. For a big case you will have a Queens
Council barrister defending you who is just as experienced as the prosecutor.

And finally the Crown Prosecution Service is far less interested in the
sentence than it is in the successful outcome. In other words their statistics
look just as good if you plead to one very minor charge compared to several
major ones. So plea bargaining here is much more about reducing their workload
than it is in scoring political points.

If you are truly innocent (or believe yourself to be in the case of Aaron)
then trusting then plea bargains are not for you in the UK.

~~~
gsnedders
This is very English-centric, for what it's worth. Plea bargains are an oddity
under English law (they don't exist elsewhere in the UK), and the CPS is
equally English.

Apart from that about plea bargains, it does mostly hold true in Scotland/NI.

------
azernik
Probably the most interesting sentence here to me (not the author's own words,
but cited from another source):

"German legal ideology, moreover, is opposed to penalizing people for their
own tactical mistakes."

From the news, I get the impression that the American system makes routine
practice of increasing or decreasing people's punishment not for the severity
of their crimes, but rather for their skill (or their lawyers') in navigating
the legal system.

~~~
Xylakant
I think one of the most important differences is that german penalties are
lower[1]. Here, defendants don't face 30 years in prison. The max sentence is
life sentence and even that often means 15+ years in practice, except for
harsh cases or dangerous criminals.

Another point is that the costs for the defendant are lower. Watching high
profile cases in the USA I have a feeling that one common point is that the
prosecution does everything to bankrupt the defendant so that he has to agree
to a plea bargain. In germany, the defendants costs get paid by the state if
the defendant is unable to pay his lawyers. Not all lawyers would take such an
engagement, but it's not uncommon that even high-profile lawyers defend people
who couldn't afford them at market rate.

[1] one might argue that they're more reasonable.

~~~
lispm
<http://www.mapinc.org/drugnews/v08/n417/a04.html>

Cites a New York Times article.

> Still, it is the length of sentences that truly distinguishes American
> prison policy. Indeed, the mere number of sentences imposed here would not
> place the United States at the top of the incarceration lists. If lists were
> compiled based on annual admissions to prison per capita, several European
> countries would outpace the United States. But American prison stays are
> much longer, so the total incarceration rate is higher.

~~~
Xylakant
Thanks for that link. The article offers another interesting insight:

> Several specialists here and abroad pointed to a surprising explanation for
> the high incarceration rate in the United States: democracy.

> Most state court judges and prosecutors in the United States are elected and
> are therefore sensitive to a public that is, according to opinion polls,
> generally in favor of tough crime policies. In the rest of the world,
> criminal justice professionals tend to be civil servants who are insulated
> from popular demands for tough sentencing.

German judges and prosecutors are not elected but appointed. They're not as
prone to political pressure and thus more likely to end up making unpopular
decisions. The Metzler/Gäfgen [1] case is such an example: The convicted child
murderer won a trial against the state because he was threatened with torture
during the investigation. The decision was hugely unpopular.

[1] <http://en.wikipedia.org/wiki/Magnus_G%C3%A4fgen>

~~~
lispm
We can add another explanation: capitalism.

Company ran prisons are still rare in Germany. If a private company runs a
prison (or several) it likes to see it filled...

~~~
philippK
Rare ? To me - they are unheard of.

~~~
Xylakant
There are at least partially private prisons in germany.
[http://de.wikipedia.org/wiki/Justizvollzugsanstalt#Privatisi...](http://de.wikipedia.org/wiki/Justizvollzugsanstalt#Privatisierung)

------
Argorak
Germany does have a law for plea bargaining for a few years now:
<http://www.gesetze-im-internet.de/stpo/__257c.html> (german, obviously)

------
ruggeri
This was fascinating. Thanks very much.

Others, if you haven't had a chance to read many legal journals, they are
frequently filled with insightful, closely-researched discussions of
interesting topics.

The scope of the law is very broad, and you can learn a lot about topics
outside the law by reading legal journals.

The quality of the discussion and scholarship, as well as the level of debate,
often puts mainstream journalism to shame.

------
jychang
So considering that West Germany (old article, huh) has a system without plea
bargains, how can this be applied to modern America?

~~~
azernik
Langbein (the author) seems to think the answer lies in streamlining the
American trial system. However, the root causes Langbein identifies (no
requirement for juries to provide justification for their decisions, evidence
presented by prosecution and defense rather than by the court) are so deeply
rooted in the common law that they would require serious political will to
change.

------
planetjones
This article is 34 years old.

~~~
barrkel
And if anything, it's probably more relevant today.

~~~
aw3c2
it is not. Germany does have plea bargaining nowadays.

~~~
barrkel
It is quite different though:
[http://www.concurringopinions.com/archives/2009/07/german-
bu...](http://www.concurringopinions.com/archives/2009/07/german-bundestag-
passes-plea-bargaining-law.html)

------
chatmasta
Somebody's taking con law...

