Sentencing and Punishment in
This chapter describes how sentencing policy in Germany has developed over the past thirty years and outlines its prospects for the future. I argue that, while some basic features of sentencing policy have remained unchanged over the years, Germany has made significant headway in the direction of rationality and parsimony of punishment, especially with respect to sentences implying incarceration. The trend of the present and the future seems, however, to revert to attitudes and practices of the past: severe sanctions have made a comeback, especially as a response to offenses regarded as a serious threat, such as drug offenses and organized crime.
A rough outline of the sentencing process may help in rendering what follows more comprehensible to readers not familiar with the German system. Several participants in the criminal justice system have a hand in sentencing. These include the legislature, the public prosecutor, the defendant, the trial court, and a special judicial body named Strafvollstreckungskammer (literally, “panel in charge of the execution of sentences”; see paras. 78a, 78b Code of Court Organization [CCO]).
Sentencing has traditionally been (and officially still is) the domain of the trial court. After a comprehensive trial at which issues of guilt and sentence are debated simultaneously, the court (in serious cases a mixed panel of professional and lay judges, in less serious cases a single professional judge) pronounces the verdict and—unless there is an acquittal—a fixed sentence. Most offenders receive fines only, a smaller group is given suspended prison sentences, and one of twelve convicted offenders (more exact figures follow) must immediately serve a prison sentence up to fifteen years, or a life sentence. The death penalty was abolished in 1949.
Authorized sentences are indicated individually for each offense in the Strafgesetzbuch (Penal Code [PC], dating originally from 1871 but since frequently amended), as well as in any other statute providing for criminal punishment. 1