The Turn to Confession Bargaining in German Criminal Procedure: Causes and Comparisons with American Plea Bargaining

Abstract

In recent decades German criminal procedure has developed a practice of confession bargaining, in which defense counsel negotiates with the trial judge for the defendant to confess the charged offense in exchange for a milder sentence than would result if the defendant were to contest the charge. The German practice resembles American plea bargaining in many respects. This Article probes the similarities and the differences between the two systems of negotiated criminal justice. The Article discusses the origins of the German practice, its tensions with historic principles of the procedure system, and the troubled efforts of the courts and the legislature to justify and to regulate the practice.