From Disparity in Sentencing Towards Sentencing Equality: The German Experience

Abstract

This article addresses movements in Germany towards greater uniformity in sentencing since the entry into force of the first federal criminal code in 1871, with a particular focus on developments since the second half of the twentieth century. The author reviews the empirical evidence for sentence disparity; addresses the limitations of the constitutional principle of equality as a means for overcoming sentencing disparity; identifies the causes of sentence disparity and tracks practical efforts made to overcome that disparity, specifically through the introduction of prosecutorial guidelines and judicial manuals for certain frequent types of offending. He also explains and critiques different theoretical models for increasing sentencing equality, and reviews the advantages and potential uses of sentencing information systems such as a judgment database created in Japan. The author then turns to the contribution made by the appellate courts to greater uniformity in sentencing and expresses the hope that recent trends towards intensified guidance for trial courts in appeals concerning tax offences will be extended to other types of offences as well.