Abstract
AbstractGiven 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.
Highlights
As this Article has argued, these disparities are mainly caused by broad statutory sentencing ranges along with fairly vague sentencing guidance
The comparative analysis of sentencing guidance mechanisms in the U.S, the U.K., and Australia has revealed that guideline judgments are only of limited value
Narrative-based sentencing guidelines, like the ones operating in England and Wales, avoid the pitfalls of the U.S Federal Sentencing Table
Summary
Understanding the Phenomenon In order to gain a deeper understanding of sentencing disparity as a phenomenon in German sentencing practice, the following section will present various empirical studies on this topic. The first empirical study that demonstrated the existence of regional disparities in German sentencing practice was published in 1907.32 Two decades later in 1931, Franz Exner found in his landmark study that significant variations in the harshness of criminal sentences existed between the judicial districts of the German Reich at that time.. Exploring the Causes of Sentencing Disparity Having shown that notable disparities in German sentencing practice exist, the following section will explore their causes As this Article will point out, broad statutory sentencing ranges combined with broad judicial discretion set a normative framework within which such disparities may arise. This Article will point out that sentencing guidance given to appellate courts is fairly limited and, leaves German criminal judges with broad judicial discretion
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