* 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.
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]).
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.
Sigh I specifically looked that up because I was uncertain, but I still managed to get it wrong. Next time, I'll have the coffee first. Thanks for the detailled correction.
Not to forget that in the German legal system it is, well common maybe to big a word, but at least possiblke to put people almost indeffinitaly in a psychiatric clinic. Needed for this is a criminal lawsuite and a psychiatric evaluation stating said individual is a threat for him or herself and others. If the court follows that evaluation, the defendant can be put in a forensic psychiatry without being judged guilty for the crime at all.
Just a different point, doesn't have to do something with the abuse potential of plea bargains. The biggest criticism I have regarding plea bargains in Germany is, that they usually apply for white collar crimes since these tend to be rather to complex for the average judge and state attorney to follow. Blue collar crimes are differrent matter all together.
The result is that a plea bargain benefits the state since the process is fast, the defendant since not the whole scope becomes public and the sentence tends to be rather short. While there are some public prosecution departments speciallized in white collar and financial crimes they are far between. So whenever there is one that can be settled out of court, it's tempting.
But that's just my personal view of it. One prominent example of a guy being in a psychiatry since 2006 is Gustl Mollath. And it turned out that he is not as guilty as initially believed...
The matter of detention in a psychiatric ward is a separate issue. In general it is a good thing since defendants in need of treatment get treatment instead of punishment. It is not intended as indefinite detention but requires regular reexamination. There's a problem with the examination though: There is little incentive to release a patient as "now safe", since the public outcry would be massive if the patient committed another crime afterwards.
The Mollath case is contested. It may very well be possible that he is guilty, but not crazy or crazy, but not guilty. The problems found in this case are very symptomatic of the bavaria/baden-württemberg courts. One reason is that the appeals court for that region is unlikely to actually accept an appeal.
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.
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.
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)
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.
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.
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.
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.
On your first point, as a non-expert in law and law history, I wonder to what extent these differences in trial procedure are rooted in the difference between common law and civil law.
To add to the examples, I'd say that France and Italy have procedures very similar to those described as the German system, and indeed all have a civil law system.
However, the link does not seem that obvious : the way trials are organized is not necessarily dependent on the way law is built.
The adversarial system and principles like "being judged by one's peers" are deeply ingrained in common law systems. Generally, the underlying ideas are good as they're meant to limit the authorities' powers to bring people to trial.
Ironically, just like for the American plea bargaining, the risk of the German system is hardest for those actually innocent. The differential between falsely confessing and not might not be as much as in the American system, but in the end it has the same effect. The innocent face even longer imprisonment if they insist on their innocence, in Germany it just works over the rehabilitation angle. The prison system will judge the refusal to show remorse and not trying to make amends as sign of lack of rehabilitation which will lead to a full imprisonment without early release, as opposed to the guilty case who is probable to get out after I think 60% of his time.
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.
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.
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.
Indeed, he holds up the UK's high rates of plea bargaining...
I am not sure you read the same paper as anyone else. Nowhere did I see this. In fact, the author more or less said the exact opposite on page 215. Also, this paper is dated 1979.
Plea negotiation, let alone plea bargaining, is rare in the UK. The UK government only in the last decade began to accept the use of plea bargaining in corporate crime. Occassionally, plea negotiation can also occur, most commonly in co-conspirator cases like gang assaults, but again this is uncommon.
To compare the absolutely routine use of plea bargaining in the US to their rarity in the UK would be well beyond a stretch.
Page 210:
"Plea bargaining has been documented in Eng-
land where crime rates are closer to German than to American
levels; the constant factor in both England and the United States is, of course, adversary criminal procedure."
All that's talked about on page 215 is that "in contemporary [1979] England, official ideology has been until lately loath to acknowledge the existence of plea bargaining," but that it is in fact well-documented (as an example showing that, if there were an unofficial plea bargaining system in Germany, it would be easy to discover by interviews of legal counsel).
I agree that the US is indeed a more extreme case (especially in not limiting plea bargaining to certain types of cases and openly accepting plea bargaining in principle), but this author clearly believes that the causative factor in both cases is the complexity of common law trial procedure (which, again, seems to have reached extremes in the US that are unmatched in the UK).
There is no "UK legal system". English law (covering the historic Kingdom of England, i.e., England and Wales) and Scots law (covering the historic Kingdom of Scotland, i.e., Scotland), and Northern Ireland law are all separate common law jurisdictions with their own oddities, and though they share some laws the extent to which precedents cross the different jurisdictions is unclear.
It's not quite correct to say that Scots law is entirely independent though. It's true that The High Court of Justiciary is the highest court of appeal for Scottish criminal cases, but the Supreme Court of the UK (formerly the House of Lords) is the highest court of appeal for civil cases in the UK and decisions in Scotland can be appealed there. However, the rules and procedures of Scots law are different and so judgements in England which are used as precedents in Scotland have to be reinterpreted in the light of Scots law and visa versa. I know for a fact that there is a standard contract clause which currently has a different interpretation in England versus Scotland because neither of the interpretations have yet been appealed in the Supreme Court. As you can imagine this can cause endless amounts of expensive legal haggling. Scots and English law also use very different legal terminology and procedures for many everyday processes. Interestingly, this is because Scots law is a mixture of civil law derived from Roman law (like most of Europe) and common law (like England, US, Australia, Canada etc).
Also, I think English law can in theory draw on precedents set by courts in other commonwealth countries; I vaguely remember seeing Australian case-law cited when I was studying law related to professional negligence, but I can't find a reference to it now.
It's a very typically British setup which is the culmination of 100's of years of compromises here and there which viewed together now are totally impenetrable to the layman. The whole setup is utterly confusing and should be thrown away and rewritten from scratch preferably with the same law applying over the whole of the EU if you ask me, but then I'm not a lawyer.
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.
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.
> 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.
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.
> 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.
This seems to be a typical feature of a Common Law based system, and an incidental rather than intentional feature.
By its nature, such a system tends to become more complex over time and resist deep-reaching reform. The complexity then automatically rewards navigation skill.
Perhaps it was originally incidental, but at this late date both prosecutors and defense attorneys know on which side their bread is buttered. They might occasionally countenance a reduction in sentences, but they'll never allow a reduction in complexity and complication to emerge from our legislatures. Our judges all begin as prosecutors [!] so even though their livelihood wouldn't be threatened they're too professionally deformed to even recognize complexity as an issue.
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.
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.
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).
* 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...