The Cultural Limits of Formalism and Uniformity in the German Penal Code
Shawn Marie Boyne
Indiana University Robert H. McKinney School of Law
March 9, 2012
Indiana University Robert H. McKinney School of Law Research Paper No. 2012-06
Despite the fact that certainty and predictability in the law are essential building blocks of the German legal system, the goal of uniformity in the law has not precluded the development of divergent local legal practices. For example, while prosecutors throughout Germany use the same criminal law and procedure playbooks, there are wide discrepancies in how prosecutors and judges apply the law in the search for truth. In fact, despite the fact that the system’s compass is directed to administer justice uniformly across the state, in the search for truth, place matters. At each truth finding stage, from the initial investigation of a reported crime to a case’s final adjudication, unique combinations of political and cultural factors shape the system’s outcomes. In some cases, variations in local legal practice reflect different customary attitudes towards crime embedded in the traditions of local communities. The confluence of incentives and leadership practices specific to particular organizational entities also shape the implementation of the law on the front lines.
These differences in local legal practices have produced large variations in case dismissal rates and sentencing practices throughout Germany. While one would expect to see variations in sentencing norms in a country like the United States, where each state has drafted its own codes of criminal law and procedure, it is surprising to observe this variation in practice in a state with a common code. Although evidence of a variance in decision-making practices would be unsurprising to legal realists, these variations in outcomes call into question the ability of the law on the books standing alone to achieve the system’s normative goals of restricting prosecutorial discretion and guaranteeing citizens that they will be treated equally before the law
The reason for this discrepancy between the system’s normative aspirations and actual practice is easy to identify. Although prosecutors and judges throughout Germany use the same playbook to investigate, prosecute, and sanction criminal activity, it is the individual Länder that bear the responsibility for administering justice. Cross-cutting prerogatives at the Land, region, and local levels affect how prosecutors interpret and apply the law within the zones of discretion permitted by the law. Thus, the flexibility inherent within the formal structure of the law permits informal norms and local prerogatives to define the face of justice on the front lines. The face of justice is constituted by local legal cultures.
This article’s central premise is that outcomes in the German criminal justice system are the product of a series of relational processes in which individual subjectivity, office practices, and informal group norms shape how facts are analyzed and the law is interpreted. Rather than operating in an autonomous and uniform manner, the Federal Codes of Criminal law and Procedure play a constructive role in identifying the range of behaviors that the system defines as worthy of criminal sanction as well as the procedural rules of the game. The rules function as a mere starting point that prosecutors on the front lines of justice will interpret, reshape, and apply to particular sets of facts while they comply with institutional norms and expectations.
To understand these differences in system outcomes, we must understand the role that culture and place play in the etiology of criminal justice. More specifically, we must understand how local attitudes, organizational constraints, and prosecutors’ experiences mirror local cultural norms that impact the interpretation and implementation of the law. By situating prosecutorial decision-making in local organizational environments, in this article I show how dynamic institutional processes and practices produce and reproduce the decision-making norms that drive regional variances in practice.
Number of Pages in PDF File: 44
Date posted: September 7, 2011 ; Last revised: July 6, 2012