6 ms·

Land without Plea Bargaining: How the Germans Do It (1979)

192 points by rfugger 14y ago

jychang 14y ago
So considering that West Germany (old article, huh) has a system without plea bargains, how can this be applied to modern America?
- azernik 14y ago
  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 14y ago
This article is 34 years old.
- barrkel 14y ago
  And if anything, it's probably more relevant today.
  - aw3c2 14y ago
    it is not. Germany does have plea bargaining nowadays.
    - barrkel 14y ago
      It is quite different though: http://www.concurringopinions.com/archives/2009/07/german-bundestag-passes-plea-bargaining-law.html http://www.concurringopinions.com/archives/2009/07/german-bu...
    - roma1n 14y ago
      Still, many other western countries do not have plea bargaining. France for instance has a really minor form of plea bargaining that is only used for sentences up to 1 year in prison (and prison sentences shorter than two years are typically not served).
    - cwp 14y ago
      So? The German system as it existed 30 years ago is still interesting.
Argorak 14y ago
Germany does have a law for plea bargaining for a few years now: http://www.gesetze-im-internet.de/stpo/__257c.html http://www.gesetze-im-internet.de/stpo/__257c.html (german, obviously)
Xylakant 14y ago
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-kritik-am-deal-in-strafprozessen http://beck-aktuell.beck.de/news/bverfg-uebt-deutliche-kriti...
- rbehrends 14y ago
  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 http://en.wikipedia.org/wiki/Emminger_Reform
BjoernKW 14y ago
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.
- anonymouz 14y ago
  I am an outsider to both the US and the UK legal system, and living in Austria have grown up in a legal system very similar to the German one. From this perspective your last sentence struck me as odd, since, for example, I distinctly remember the UK settling a very high profile corruption case with BAE [1]. Maybe it does not happen that often, but it still seems to be problematic in some cases. [1] http://www.pbs.org/frontlineworld/stories/bribe/2010/02/bae-too-good-a-deal-says-chair-of-anti-bribery-group.html http://www.pbs.org/frontlineworld/stories/bribe/2010/02/bae-...
  - BjoernKW 14y ago
    There are limits to plea bargains in the UK. One such limit is that a bargain can only be made if prosecutor and defendant agree upon the defendant pleading guilty on some charges while the remaining charges are dropped. Moreover, the court still has to decide on the appropriate penalty (considering only the charges that haven't been dropped, of course), that is there is no binding agreement on penalty between prosecution and defendant. Plea bargaining does happen in the UK and can be problematic in those cases but it's nowhere near as excessive as in the US.
azernik 14y ago
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 14y ago
  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 14y ago
    http://www.mapinc.org/drugnews/v08/n417/a04.html 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 14y ago
      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 http://en.wikipedia.org/wiki/Magnus_G%C3%A4fgen
nikcub 14y ago
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 14y ago
  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 14y ago
    RICO also has a substantial civil portion. See the Palantir vs. I2 lawsuit.
    - rdl 14y ago
      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)
  - btilly 14y ago
    FISA has also mainly been used against "bad people" so far. Evidence? We hear about cases where the prosecutors decided that someone was bad and proceeded. However it would "violate our privacy" for us even to be TOLD how many of us are under surveillance. Our general awareness of how often it is misused is not evidence that it is not misused on a regular basis. And in general the best presumption is that anywhere where you have authority combined with dark spaces, there are cockroaches breeding.
deleted 14y ago
[deleted]
chatmasta 14y ago
Somebody's taking con law...
ruggeri 14y ago
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.

192 points by rfugger 14y ago

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

azernik 14y ago
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 14y ago

This article is 34 years old.

barrkel 14y ago
And if anything, it's probably more relevant today.
- aw3c2 14y ago
  it is not. Germany does have plea bargaining nowadays.
  - barrkel 14y ago
    It is quite different though: http://www.concurringopinions.com/archives/2009/07/german-bundestag-passes-plea-bargaining-law.html http://www.concurringopinions.com/archives/2009/07/german-bu...
  - roma1n 14y ago
    Still, many other western countries do not have plea bargaining. France for instance has a really minor form of plea bargaining that is only used for sentences up to 1 year in prison (and prison sentences shorter than two years are typically not served).
  - cwp 14y ago
    So? The German system as it existed 30 years ago is still interesting.

Argorak 14y ago

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

Xylakant 14y ago

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-kritik-am-deal-in-strafprozessen http://beck-aktuell.beck.de/news/bverfg-uebt-deutliche-kriti...

rbehrends 14y ago
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 http://en.wikipedia.org/wiki/Emminger_Reform

BjoernKW 14y ago

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.

anonymouz 14y ago
I am an outsider to both the US and the UK legal system, and living in Austria have grown up in a legal system very similar to the German one. From this perspective your last sentence struck me as odd, since, for example, I distinctly remember the UK settling a very high profile corruption case with BAE [1]. Maybe it does not happen that often, but it still seems to be problematic in some cases. [1] http://www.pbs.org/frontlineworld/stories/bribe/2010/02/bae-too-good-a-deal-says-chair-of-anti-bribery-group.html http://www.pbs.org/frontlineworld/stories/bribe/2010/02/bae-...
- BjoernKW 14y ago
  There are limits to plea bargains in the UK. One such limit is that a bargain can only be made if prosecutor and defendant agree upon the defendant pleading guilty on some charges while the remaining charges are dropped. Moreover, the court still has to decide on the appropriate penalty (considering only the charges that haven't been dropped, of course), that is there is no binding agreement on penalty between prosecution and defendant. Plea bargaining does happen in the UK and can be problematic in those cases but it's nowhere near as excessive as in the US.

azernik 14y ago

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 14y ago
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 14y ago
  http://www.mapinc.org/drugnews/v08/n417/a04.html 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 14y ago
    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 http://en.wikipedia.org/wiki/Magnus_G%C3%A4fgen

nikcub 14y ago

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 14y ago
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 14y ago
  RICO also has a substantial civil portion. See the Palantir vs. I2 lawsuit.
  - rdl 14y ago
    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)
- btilly 14y ago
  FISA has also mainly been used against "bad people" so far. Evidence? We hear about cases where the prosecutors decided that someone was bad and proceeded. However it would "violate our privacy" for us even to be TOLD how many of us are under surveillance. Our general awareness of how often it is misused is not evidence that it is not misused on a regular basis. And in general the best presumption is that anywhere where you have authority combined with dark spaces, there are cockroaches breeding.

deleted 14y ago

[deleted]

chatmasta 14y ago

Somebody's taking con law...

ruggeri 14y ago

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.