German Bundestag Passes Plea Bargaining Law
posted by Jenia Turner
Germany was once known as a “land without plea bargaining.” Those days are now long gone.
On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.
First, the law gives the court a central role in the negotiations. This is in stark contrast to the rules in most U.S. jurisdictions, under which judges are strictly prohibited from participating in plea negotiations. Under the new German legislation, judges may initiate negotiations and may indicate the maximum and minimum sentence they would impose as part of the bargain. This requirement has the advantage of involving a neutral party in the bargaining process. At the same time, it raises concerns about judicial bias and even coercion, since the same judges who are involved in the negotiations will be determining the sentence. And if the bargain falls apart, the same judges will be deciding the guilt or innocence of the defendant.
The new law also settles an issue that was contested in the courts for some time-the validity of bargained-for waivers of appeal rights. The legislation prohibits any bargains that include a waiver of the right to appeal the verdict or the sentence. The prohibition on negotiated appeals waivers is a feature that U.S. courts and legislators would be well-advised to consider. Although negotiated appeals waivers are undoubtedly efficient, they also insulate from review a practice that is already criticized for its lack of transparency and its potential coerciveness.
The German legislation further provides that a court may reject a bargain it helped negotiate “when legally or factually significant circumstances were overlooked or presented themselves for the first time, and the court concludes for this reason that the predicted sentence is no longer proportionate to guilt. The court may also reject the agreement when further conduct by the accused contradicts the basis on which the court made its sentence prediction.” This provision aims to reconcile plea bargaining with two longstanding principles of German criminal procedure: 1) that the court has an independent duty to investigate the truth in the case; and 2) that the court must impose a sentence proportionate to guilt. But as German scholars like Thomas Weigend have suggested, the provision gives a surprising amount of leeway to judges in changing their minds about bargains they have helped negotiate. The defendant would then have no choice but to appear for trial before the same judges who have just rejected the bargain.
Another noteworthy element of the new legislation is its requirement that, if the court rejects a bargain, the defendant’s confession may not be used as evidence against him in subsequent proceedings. Under earlier case law, even when the court rejected a bargain, the defendant’s confession could be used against him at trial. The practical effect of this change may not be as great as it appears, however, since the same judges who have heard the excluded confession would be the ones conducting the subsequent trial.
In a broader context, Germany’s official embrace of plea bargaining is notable because it appears to represent a global trend. Countries as diverse as Russia, India, Taiwan, Australia, and Argentina have now adopted some form of plea bargaining. As a major civil-law system, Germany may well influence further developments in this direction around the world. It might not be long before countries like China and Japan-which have so far largely resisted plea bargaining-formally adopt the practice. And even countries with longstanding traditions of plea bargaining, such as the United States, could learn from Germany’s experience about new ways to enhance the fairness of plea bargaining.
July 16, 2009 at 9:30 am
Tags: German Criminal Procedure Code, Germany, plea bargaining
Posted in: Criminal Procedure, International & Comparative Law
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Responses (2)
David W. - July 16, 2009 at 3:53 pm
Jenia,
Very interesting post, very interesting trend. I’d love to know more about the causes. What’s driving civil law countries to adopt plea bargaining? What sectors of society — or of the bar — are pushing for increased use of plea bargaining? Are there other social factors that are putting plea bargaining on the agenda? E.g., increasing crime rates, the influence of American legal education, related legal reforms? Perhaps fewer defendants confessing? Or is there just a general desire for the perceived efficiency gains of plea bargaining?
In the case of Japan, most studies report that 92%+ of defendants confess to the crimes they are indicted for. With those kind of statistics, it’s hard to see why prosecutors would need or want to enter into plea bargaining. Or perhaps the confession statistic indicates that de facto plea bargaining is already occurring on a large scale. In any event, many thanks for bringing the new German legislation to our attention.
Jenia Turner - July 17, 2009 at 9:31 am
David,
Thanks for your comment and your very good questions! I am especially glad you asked, since I address your questions in more detail in a forthcoming book, Plea Bargaining Across Borders (Aspen, Oct. 2009)(Thank you for giving me the opportunity to self-promote!).
In brief, the causes for this trend vary from country to country. In Eastern Europe, the trend toward plea bargaining was driven by a general push toward efficiency (there was a rise in organized crime and an outdated and slow inquisitorial system) and formed part of broader law reforms, some of which were promoted by U.S. organizations like ABA-CEELI and agencies like DOJ-OPDAT (which specifically encouraged the adoption of plea bargaining).
In Germany, it was practitioners and judges who began resolving cases consensually on their own. The main cause was an increase in more complex criminal cases. But other causes arguably include the rise of a more aggressive defense and, I believe, to some extent, the influence of comparative legal education, which had informed German lawyers about plea bargaining in the United States. So all of the factors you indicated in your comment played a role in the global spread of plea bargaining.
As for Japan (on which I have a chapter in the book), you are right that the vast majority of defendants already confess. Some scholars, like David Johnson, assert that what is happening is the functional equivalent of plea bargaining. I think he is right to some degree. But remorse and reconciliation seem to be important elements of the procedure in Japan, so I don\’t think that their implicit exchange of confessions for lower sentences is quite the same as our plea bargaining, which is driven primarily by efficiency considerations.
That said, with the introduction of jury trials and broader victims’ rights, as well as a rise in crime rates, Japan has begun introducing various mechanisms to expedite proceedings. So efficiency is becoming an increasingly important consideration in Japanese criminal justice. Moreover, a limited form of plea bargaining has been expressly considered (but so far rejected) as a way to obtain the cooperation of insiders in complex organized crimes.
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