Striving for Consistency: Why German Sentencing Needs Reform

Abstract

Given the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.

Towards automated recommendations for drunk driving penalties in Poland - a case study analysis in selected court

“…2. regionalisms -adopted patterns of jurisprudence in the units concerned that differ from one judicial district to another [18],…”

“…It is also argued that the judge's wide discretion, aimed at an individual assessment of each case, is often an apparent discretion, as judges rule according to specific, contractually accepted tariffs. Despite the wide range of penalties that can be imposed, the vast majority of penalties imposed fall within a narrow range, usually the lower part of the statutory threat, using 1/3 of the statutory range [18], [23]. The effect is the same, i.e., the level of punishment in a given case is the result of the translation of the circumstances of the case into the type and amount of punishment according to standardized relations between these categories whether legally standardized and binding or customary and accepted by judges and prosecutors [27], [19], [17], [30].…”

Sex, Age, Education, Marital Status, Number of Children, and Employment – the Impact of Extralegal Factors on Sentencing Disparities

“…It must be pointed out that reducing sentencing disparities and enhancing consistency of the system is becoming a popular issue not only in the Anglo-Saxon world but also in other European jurisdictions (cf. Herz 2020;Frisch 2017;Drápal 2018;Mamak et al 2020). The problem of sentencing disparities was also noticed by the Council of Europe, which almost 30 years ago, after researching the issue (Council of Europe 1974) recommended the taking of appropriate measures to avoid unwarranted sentencing disparities (Council of Europe 1993).…”

“…In recent decades research has also been conducted in civil law countries, especially in Western Europe, mostly in Germany (cf. Albrecht 1994;Albrecht 1997;Frisch 2017;Herz 2020), in the Netherlands (Johnson, Wingerden, and Nieuwbeerta 2010; van Wingerden, van Wilsem, and Johnson 2016;Wermink et al 2017;Light and Wermink 2021;Komen and Van Schooten 2009), and in Belgium (Bielen, Grajzl, and Marneffe 2021). During the last decade studies have been carried out in Scandinavia (Sandøy, Østhus, and Bretteville-Jensen 2021;Gottschalk and Rundmo 2014;Kruttschnitt and Savolainen 2009;Vestergaard 2004), and in other countries, like the Czech Republic (Drápal 2018;Drápal and Pina-Sánchez 2019), Poland (Mamak et al 2020) and China (cf.…”