NCJ Number
59917
Journal
Law and Society Review Volume: 13 Issue: 2 Dated: SPECIAL ISSUE (WINTER 1979) Pages: 309-325
Date Published
1979
Length
17 pages
Annotation
THE WEST GERMAN VERSION OF THE PENAL ORDER (A WRITTEN PROPOSAL TO DEFENDANTS TELLING THE CRIME COMMITTED AND THE PENALTY TO BE LEVIED, IF THEY CONSENT,) AVOIDS SOME OF THE NEGATIVE FEATURES OF PLEA BARGAINING.
Abstract
MOST ROUTINE CASES IN INDUSTRIALIZED SOCIETIES ARE PROCESSED BY SOME ABBREVIATED LEGAL PROCEDURE, SUCH AS PLEA BARGAINING IN THE U.S. AND THE PENAL ORDER IN CENTRAL EUROPE. THE AMERICAN SYSTEM HAS DEVELOPED SUCH NEGATIVE FEATURES AS OVERCHARGING DEFENDANTS AND MANIPULATING JAIL TIME TO PERSUADE DEFENDANTS TO PLEAD GUILTY. AN EXAMINATION OF THE ADVANTAGES OF THE PENAL ORDER LEADS TO THE SUGGESTION THAT SUCH A SYSTEM SHOULD BE TRIED IN THE U.S. SUCH ORDERS CAN BE USED ONLY FOR CRIMES CALLED VERGEHEN, THE AMERICAN EQUIVALENT BEING MISDEMEANORS INVOLVING CRIMINAL INTENT OR NEGLIGENCE AND FELONIES CONCERNED WITH PROTECTING PROPERTY. THE PENAL ORDER IS DESIGNED TO HANDLE ROUTINE CASES AND IS USED WIDELY IN WEST GERMANY. THE POLICE CONDUCT THE INITIAL INVESTIGATION, AND PROSECUTORS THEN DETERMINE HOW TO PROCEED WITH THE CASE. IF THEY RECOMMEND USING A PENAL ORDER, JUDGES THEN GIVE A CURSORY REVIEW OF THIS RECOMMENDATION. EVEN THOUGH THE TRIAL PROCEEDINGS FOR DEFENDANTS WHO REJECT SUCH AN ORDER ARE NOT LONG, 90 PERCENT OF SUCH DEFENDANTS ARE FOUND GUILTY. THIS RAISES THE QUESTION OF WHETHER THESE DEFENDANTS ARE PENALIZED FOR REJECTING SUCH PENAL ORDERS. HOWEVER, THE TRIAL PROCEEDINGS ARE ESTABLISHED TO PROTECT THE DEFENDANTS' RIGHTS TO GET THE BEST POSSIBLE OUTCOME; DEFENDANTS ARE ALLOWED TO ACCEPT THE PENAL ORDER AT ANY STAGE IN TRIAL PROCEEDINGS. THE COMMON AMERICAN PRACTICES OF OVERCHARGING DEFENDANTS WITH CRIMES OR REDUCING THE SERIOUSNESS OF CRIMES TO INDUCE PLEA BARGAINING IS NOT A MAJOR PROBLEM IN WEST GERMNAY. THE DESIRE TO AVOID JAIL IS NOT A MOTIVATING FACTOR IN ACCEPTING PENAL ORDERS BECAUSE JAIL SENTENCES OF LESS THAN 6 MONTHS ARE RARELY GIVEN, AND PENAL ORDERS CAN BE USED ONLY FOR CRIMES FOR WHICH FINES ARE THE ONLY MEANS OF PUNISHMENT. EVEN THOUGH THIS PROCEDURE CANNOT BE TOTALLY ADOPTED IN THE U.S., IT DOES SUGGEST METHODS OF MEANINGFUL REFORM OF SOME OF THE PRESENT ABUSES. FOOTNOTES AND REFERENCES ARE PROVIDED. (KCP)