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53 U. Pitt. L. Rev. 755 (1991-1992)
Bargaining Justice - A Bargain for German Criminal Justice

handle is hein.journals/upitt53 and id is 765 raw text is: BARGAINING JUSTICE - A BARGAIN FOR GERMAN CRIMINAL JUSTICE? Joachim Herrmann* I. INTRODUCTION The administration of criminal justice in Germany has undergone dramatic changes in recent years. Bargaining over charges and sentences and settling cases have become common practice, even though they previously were considered repugnant to the principles and tradition of German criminal justice. German-type bargaining does not fully conform to plea bargaining in the United States, since there is no equivalent to the guilty plea in German criminal procedure. Nonetheless, the new German practice displays interesting similarities with American plea bargaining. It oper- ates to avoid or mitigate the potentially harsh sanctions of the criminal law. Like American plea bargaining, it is mainly a consequence of the over-burdened criminal justice system. As will be explained at the end of this article, there are, however, additional reasons for the develop- ment of bargaining in Germany. The origin of bargaining in the German criminal justice system can be traced back to the early 1970s.1 At first, it was practiced on a relatively small scale and was restricted to exceptional cases, mainly involving petty crimes. Because it lacked legal foundation, however, it was not discussed in public.2 * Visiting Professor of Law, University of Pittsburgh; Professor of Law, University of Augs- burg, Germany. My visit at the University of Pittsburgh was made possible by a grant from the United States Information Agency to this University. I am grateful to Ronald Brand, Professor of Law, University of Pittsburgh for having helped me with my English. The footnotes referring to German language texts will be mainly limited to instances of direct citations. It does not seem necessary to provide the American reader with full references as to the extensive inner-German discussion of the new problem of bargaining justice. 1. See Joachim Herrmann, The Rule of Compulsory Prosecution and the Scope of Prosecutorial Discretion in Germany, 41 U. Cm. L. REV. 468, 489-93, 503 (1974). 2. Gunter Widmaier, Der strafprozessuale Vergleich, 1986 STRAFVERTEIDIGER 357; Bernd Schfinemann, Absprachen im Strafverfahren?-Grundlagen, Gegenstainde und Grenzen, 1 VER- HANDLUNGEN DES ACHTUNDFONFZIGSTEN DEUTSCHEN JURISTENTAGES, B 9 (1990). Since bargaining was practiced in secret, Langbein cannot be blamed for having published an

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