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 [...]]]> 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.