Sentencing in Germany

Abstract

The purpose of this paper is to provide an understanding of the practical reality of sentencing in Germany. My brief discussion of sentencing in Germany will show that the German approach to sentencing is far less punitive than its U.S. counterpart although both countries belong to the so-called Western World and have rather similar political and economic structures. The question whether such an illustration of a much less punitive criminal justice system will aid the discussion of the sentencing provisions in a revised Model Penal Code will have to be answered by Americans familiar with U.S. law, with the American practice of sentencing, with the reality of the criminal justice system, and generally with criminal policy in the United States. Irrespective of the judgment of these legal experts and of the reader, a comparison between American and German sentencing is extremely difficult due to major differences among the criminal justice systems regarding practically all important aspects. A significant divergence of the two systems can already be seen in the case of substantive law: while the German approach is very systematic, includes a highly developed dogmatic interpretation through the courts which in every verdict have to offer a comprehensive written body of arguments explaining how the law applies to the facts, and involves numerous commentaries in the academic discussion of criminal law, in the American system the outcome of a case is plea bargained in more than 90% of all cases, and in the case of a jury verdict no legal arguments are provided to support the “yes or no”