Comparative Law, Constitutional Law, Criminal Law, Federal Constitutional Court, Police and Prosecutors

The Difficult Birth of the Criminal Plea Bargain in Germany


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If there’s one rule of legal politics that applies worldwide, it’s that criminal justice is the red-headed stepchild of the law. Most of the people who are prosecuted for crimes are poor, and the state has to pay for the lawyers who prosecute and defend them — if it guarantees them defense lawyers at all. Criminal trials and punishment don’t generate added value, they’re an expensive loss the state accepts in return for the abstract benefit of enforcing the law. Accused and convicted criminals don’t constitute a powerful interest group (if they do, then that country has much bigger problems than underfunded courts), so there’s no political pressure to improve matters. So governments spend just enough money to ensure the criminal-justice system functions minimally, but no more than this. If the state needs to tighten its belt, budgets for criminal justice are one of the first line-items to be cut.

This leads to a crushing need for efficient resolution of criminal cases, never mind how fair the resolution is. And the most efficient way to resolve a criminal case is by a deal, or ‘plea bargain‘ in common-law parlance. The prosecution offers the defendant reduced punishment (or a conviction of a lesser crime) if he pleads guilty. After a bit of horse trading, usually involving only the prosecutor and defense lawyer, the right figure is agreed on. The defendant appears before the judge, enters a guilty plea formally waives his right to a trial, gets his reduced sentence, and the case is closed without the need for an expensive, uncertain trial. Everyone is happy, sometimes even the defendant.

In the USA, the entire criminal-justice system is designed to encourage plea bargains: punishments are severe, which encourages defendants to seek a deal. Deals are enforceable in court, and can be reviewed by an appeals court under certain circumstances. The USA even allows defendants to plead guilty to crimes they say they didn’t commit: in a so-called Alford plea (named after the defendant in a court case), the defendant enters court, states that he didn’t commit the crime, but then admits that the prosecution has enough evidence to convict him beyond a reasonable doubt. This is sufficient to allow the plea-bargain to go forward. In the United States, 94% of state-law criminal cases and 97% of all federal criminal cases are now resolved by plea bargains. As the above graphic shows, there is a terrifying incentive for plea-bargaining your case. If you insist on a trial, you will likely receive much harsher punishment.

For years, German legal commentators, scandalized by the state of affairs in the USA, believed the plea bargain could never enter German law. The German criminal trial, they maintained, was very different from its counterpart in the English-speaking world. The German trial is led by a judge who painstakingly searches out the truth of all the circumstances of the alleged crime, based on in-person testimony and expert reports. The judge’s duty, as defined by law, is to find out exactly which crime was committed, and impose the most appropriate sentence for precisely that crime. Prosecutors, for that matter, are obliged to investigate every crime of which they become aware, and raise those criminal charges which fit the facts best.

All of these are fundamental principles of the German legal system, enshrined in the German Code of Criminal Procedure, whose roots go back to the original code of the newly-unified German Reich in 1877. Yet many of the basic principles relating to criminal prosecution go back even further in German legal history — they’re outgrowths of the German notion of the Rechtsstaat, a term usually translated as “the rule of law”, but which goes much further. As applied to criminal trials, the Rechtsstaat requires that an unbiased judge probe all the facts of the case in a public proceeding in which all parties have a right to be heard, with the ultimate purpose of discovering the fundamental historical truth of what happened.

This is not what happens in a plea bargain. A German professor’s lecture notes summarize (g) the specific dangers the idea of a criminal plea bargain was thought to pose:

  1. Legality principle: A danger of forfeiting the state’s indispensable claim to be the sole legitimate punishing authority, especially in the case of serious crimes, when it might be the case that punishments are agreed to which are seriously disproportionate to the charged crime.

  2. Principle of thorough investigation (Ermittlungsgrundsatz): A danger that a court will credit a confession to avoid a long trial, even though there remain doubts as to the culpability and participation of the defendant.

  3. Principle of public trials, of oral testimony, and of direct evidence: Deals generally take place outside the scope of the trial, thus there is no effective oversight by public proceedings.

  4. Principles of the right to a fair hearing and a lawful judge: There is a danger that deals reached outside the scope of the main trial may violate parties’ rights to be present and participate in the proceedings.

  5. Principle of a “fair trial” [in English in the original]: There is the further danger that the defendant’s trust in the system will be destroyed if the terms of the deal are not adhered to by the sanctioning authorities.

  6. Presumption of innocence and the principle of “in dubio pro reo” (doubts are to be resolved in favor of the accused): The deal is based on the presumption of the defendant’s guilt, creating the danger that the defendant will be pressured to provide evidence against himself.

  7. Biased Judge (§ 24 II StPO): There is also the danger that the judge will become biased against the defendant by the deal negotiations themselves, even if they fail, and will no longer be able to preserve an objective view of the case.

That’s a lot of objections. Yet, as is so often the case in Germany (and elsewhere), crude material realities soon swept them aside. Starting in the 1970s, crime increased dramatically, but budgets for criminal courts did not. Something had to give. Informal “deals” — German commentators often use this English word, as if to emphasize how foreign the concept is to the sacred principles of the German Rechtsstaatbegan in the 1970s, and became increasingly commonplace by the 1990s.

Eventually, the government decided to domesticate the “deal” and give it an official stamp of approval, a decision which provoked white-hot controversy in German legal circles. The federal legislature added Section 257c to the German Criminal Procedure Code (abbreviated StPO) in 2009:

(1) In suitable cases the court may, in accordance with the following subsections, reach an agreement with the participants on the further course and outcome of the proceedings….

(2) The subject matter of this agreement may only comprise the legal consequences that could be the content of the judgment and of the associated rulings, other procedural measures relating to the course of the underlying adjudication proceedings, and the conduct of the participants during the trial. A confession shall be an integral part of any negotiated agreement. The verdict of guilt, as well as measures of reform and prevention, may not be the subject of a negotiated agreement.

(3) The court shall announce what content the negotiated agreement could have. It may, on free evaluation of all the circumstances of the case as well as general sentencing considerations, also indicate an upper and lower sentence limit. The participants shall be given the opportunity to make submissions. The negotiated agreement shall come into existence if the defendant and the public prosecution office agree to the court’s proposal.

(4) The court shall cease to be bound by a negotiated agreement if legal or factually significant circumstances have been overlooked or have arisen and the court therefore becomes convinced that the prospective sentencing range is no longer appropriate to the gravity of the offence or the degree of guilt. The same shall apply if the further conduct of the defendant at the trial does not correspond to that upon which the court’s prediction was based. The defendant’s confession may not be used in such cases. The court shall notify any deviation without delay.

(5) The defendant shall be instructed as to the prerequisites for and consequences of a deviation by the court from the prospective outcome pursuant to subsection (4).

The wording is a bit opaque, even in German — phrases such as “free evaluation” of the evidence and “measures of reform and prevention” are technical terms of art which have no direct English equivalents. The crucial point is that this regulation was meant to achieve a balance between the principles of German criminal justice and the reality of the deal. The judge is still supposed to be in complete control of the proceedings, the defendant’s confession is not the sole basis for the guilty plea, the judge can declare the deal invalid if circumstances change, and the parties to the case are allowed to participate.

The new law was challenged in front of the German Federal Constitutional Court, which issued its opinion in 2013. The press release for the decision is available in English, as well as almost all of the original decision (g) itself. As a general matter, the Court held that the new plea-bargain law provided adequate protections for the rights of defendants:

Criminal law is based on the principle of individual guilt, which has constitutional status. This principle is anchored in the guarantee of human dignity and personal responsibility (Art. 1 sec. 1 and Art. 2 sec. 1 of the Basic Law (Grundgesetz – GG), as well as in the principle of the rule of law (Art. 20 sec. 3 GG). The government is obliged under the Constitution to ensure the functioning of the criminal justice system. It is the central concern of criminal proceedings to establish the real facts of a case, without which it is impossible to implement the substantive principle of individual guilt.

The right to a fair trial guarantees defendants to exercise their procedural rights and to adequately ward off infringements – especially those from governmental entities. It is primarily the task of the legislature to design these procedural rights. A violation of the right to a fair trial only exists if an overall assessment of the law of procedure shows that conclusions which are compulsory under the rule of law have not been drawn, or that rights which are indispensable under the rule of law have been waived. In the context of this overall assessment the requirements for a functioning criminal justice system, including the obligation to ensure the speedy conduct of proceedings, have to be kept in mind as well.

The Court commissioned an expert to carry out a study of whether the provisions for formal plea bargains were being carried out in practice. The expert, Prof. Dr. Carsten Altenhain of the University of Düsseldorf, oversaw interviews with hundreds of judges, prosecutors, and defense attorneys. The results were not encouraging:

According to estimates made by the interviewed judges, 17.9% of the criminal proceedings before local courts and 23% of the criminal proceedings before regional courts were concluded on the basis of plea bargains in the 2011 calendar year. When asked for their estimate on the percentage of cases in which plea bargaining provisions were violated, slightly more than half of the judges answered that this could well be the case in over half of all proceedings involving plea bargains. […] 54.4% of the judges stated that they did not consider it necessary to record unsuccessful attempts at concluding a plea bargain in the court records. Contrary to the requirements of § 267 sec. 3 sentence 5 StPO, 46.7% of the judges stated that they did not include in the reasons for their judgment that it had been preceded by a plea bargain. The discontinuation or limitation of the proceedings according to §§ 154, 154a StPO was very often the subject of a plea bargain; in this context, the issue of discontinuing other proceedings not included in the indictment as part of a so-called “package solution” arose frequently. […] While 61.7% of the judges answered that they always checked the credibility of a confession made in the context of a plea bargain, 38.3% of them conceded that they did not always check the credibility of a confession but rather that they only checked it often, sometimes, seldom or never. […] According to information supplied by 27.4% of the judges, even in cases of plea bargains pursuant to § 257c StPO, the accused expressly waived their right to lodge an appeal – contrary to § 302 sec. 1 sentence 2 StPO. […] According to the interviewed judges, the “reduction in sentence” following a plea bargain confession usually ranges between 25% and 33.3% of the sentence that would be expected in a “contested” case.

The attempt to harmonize plea bargains within defendants’ rights and the procedural principles of German criminal law worked only part of the time. In the real world, judges considered many of the requirements of the law to be “unnecessary formalities” which merely hindered the rapid processing of cases in which there was little dispute as to the facts. The Court ended its discussion with a warning to the legislature:

Even if it is currently not possible to conclude from the deficits in the implementation of the Plea Bargaining Act that the statutory provision is unconstitutional, it is nonetheless necessary that the legislature keep a close eye on future developments. If the judicial practice of ignoring the statutory provisions to a significant extent continues and if the substantive and procedural precautions contained in the Plea Bargaining Act are insufficient for the purposes of remedying this deficit and are, thus, insufficient for the purposes of satisfying the constitutional requirements on plea bargains in criminal proceedings, the legislature must take reasonable steps to counteract this undesirable development…. Should it fail to do so, an unconstitutional situation would arise.

To make its point, the Court reversed the three convictions which were at the heart of the case because they involved confessions which weren’t examined carefully enough for accuracy and completeness, or because the judge did not reserve to herself the exclusive authority to enter a finding of guilt on competent evidence. The Federal Constitutional Court thus sent a clear signal (g) to lower courts: comply with the legal norms, or face a wave of reversals of convictions based on plea bargains.

The law is still in place as I write this, and is still controversial. Yet neither the state nor federal governments are prepared to spend the money required to provide a full criminal trial on the merits in every criminal case. In fact, judges all over Germany complain that their workloads are already unmanageable, and that this is harming the quality of justice:

German lawyers and judges pride themselves on the thoughtful and sophisticated principles underlying the German legal system, and not without reason. But living up to high principles is expensive, and so far, nobody has figured out how to convince politicians to pay for it, either in Germany or the USA.

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