Moderate and Non-Arbitrary Sentencing without Guidelines: The German Experience
Hornle, Tatjana, Law and Contemporary Problems
The participants in the symposium for which this paper was written discussed sentencing reforms in different countries. Compared to the situation in other countries (such as Australia, Israel, England and Wales, and the United States) Germany stands out: sentencing laws have not undergone major reforms recently, nor are such reforms being discussed. Sentencing reform is not a political issue and the sentencing reform movement has not reached Germany. The notion that the legislature (either parliament or commissions working on behalf of parliament) should regulate judges' control of sentencing is alien to the contemporary German discourse. There is no pressure in this direction from either the public or academic circles. This provides an astonishing contrast with developments elsewhere, and requires an explanation. What accounts for this passivity? Why are Germans content to leave the control of a crucial step in the application of the criminal law solely in the hands of the judiciary?
Two possible explanations come to mind. It might be the case that German sentencing rules and practices in fact need reform, and the lack of reform proposals reflects a lack of critical evaluation or political inactivity in the face of known deficiencies. Or there is a simpler explanation: If the current system, without sentencing guidelines, works fairly well overall (that is, if it achieves both a satisfying degree of equality in sentencing and moderate, reasonable sentences) then this could provide a rational explanation for why reform is not on the political agenda. I tend towards the second explanation. Of course, it would be hyperbolic to claim that the situation concerning sentencing is perfect in Germany. In previous publications I have criticized the status quo of German sentencing theory from a normative perspective, (1) and it is still the case that a lot needs to be done to improve both principles and rules. In part II of this article, the legal provisions of the German Criminal Code are sketched out, showing that they do not provide sufficient guidance for sentencing. But if one moves beyond sentencing theory and beyond the demand for improvement within the national legal framework, and instead focuses on sentencing practices from a comparative perspective, then a somewhat more optimistic stance seems defensible. As I am not a criminologist, I will not present my own empirical research. Instead, I will give a short overview of available data in part III, data which supports the conclusion that sentencing in Germany appears to be fairly moderate and consistent. The next step will be to suggest hypotheses in order to explain the status quo. What could be the factors that insulate a system against the danger of becoming overly harsh and punitive (as can arguably be seen in parts of the U.S. legal system, including the U.S. federal system) (2) and the danger of arbitrary sentencing decisions that produce a high degree of disparity? In part IV, circumstances of this kind will be considered. My more modest aim is to point out some influences that should (among others) be taken into account within complex models to explain why systems can achieve satisfactory sentencing outcomes without intensive legislative control.
THE LEGAL FRAMEWORK
A. Sentencing Provisions in the German Criminal Code
The major source for substantive criminal law in Germany is the Criminal Code, which was introduced in 1871. The Criminal Code and the Code of Criminal Procedure are federal laws, and courts within the sixteen German "Lander" apply these uniform federal laws. (3) The Criminal Code combines offense descriptions with a sentence range for each offense in its Special Part, and in its General Part it stipulates general principles for sentencing. (4) With respect to the kind of sanctions available, major reforms took place in the twentieth century. The most important changes were: the abolition of the death penalty (see Article 102 of the Basic Law--the German Constitution--and the corresponding reform of the German Criminal Code in 19535); a reform of the modes of imprisonment, which were originally more differentiated than today; (6) the availability of suspended sentences was introduced and expanded several times; (7) and the day-fine system was introduced in 1974. …