German prosecutors and the rechtsstaat

Research output: Chapter in Book/Report/Conference proceedingChapter

8 Scopus citations

Abstract

To influence an investigation because its possible result might not seem opportune is an intolerable interference with the freedom of justice. - German Federal Prosecutor Harald Range (the day before he was fired) INTRODUCTION During the past two decades, scholars, politicians, and legal practitioners in the United States have criticized American prosecutors for adopting a “conviction mentality” that diverges from their ethical duty to pursue justice. Most notably, critics have alleged and, in some cases shown, that prosecutors have suppressed exculpatory evidence, applied the law selectively, used their sentencing leverage to force plea bargains, and may even have helped fuel America’s incarceration epidemic. These criticisms locate the origin of these problems in prosecutors’ lack of accountability, the inefficiency of elections, non-transparent decision-making processes, and prosecutors’ desire for political gain. These criticisms have spawned a number of proposals designed to hold prosecutors more accountable including: documenting misconduct, strengthening internal decision-making guidelines, increasing the transparency of the discovery process, and stiffening disciplinary consequences. However, solving the problem may require that reformers find ways to change the organizational culture of prosecution offices. Decades ago, William Pizzi chastised prosecutors and police for the emphasis placed on “winning” that is embedded in their organizational cultures. The assumption underlying many of these proposals is that, by increasing transparency and strengthening prosecutors’ democratic accountability, we can curb the inequitable use of prosecutorial discretion and limit prosecutorial misconduct. In contrast, if there has been any criticism of German prosecutors, that criticism focuses on prosecutors’ proclivity to dismiss charges or defer prosecution and under-prosecute certain types of cases. This is particularly true with respect to corporate corruption cases where weak laws and personnel constraints often lead prosecutors to conclude weak “confession agreements” with powerful corporate actors. Scholars and human rights groups, as well as the media, have also criticized prosecutors for their failure to prosecute perpetrators of the Holocaust, individuals who commit hate crimes, as well as crimes against women. In addition, parliamentary bodies on the Länder level have alleged that politicians have sought to use their political influence to subvert the prosecution of individual cases.

Original languageEnglish (US)
Title of host publicationProsecutors and Democracy
Subtitle of host publicationA Cross-National Study
PublisherCambridge University Press
Pages138-174
Number of pages37
ISBN (Electronic)9781316941461
ISBN (Print)9781107187559
DOIs
StatePublished - Jan 1 2017
Externally publishedYes

Bibliographical note

Publisher Copyright:
© Cambridge University Press 2017.

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