Prosecutorial Accountability in the Rechtsstaat: The Tension between Law, Politics, and the Public Interest

Abstract

During the past two decades, scholars, politicians, and legal practitioners in the United States have criticized American prosecutors for adopting a “conviction mentality” that diverges from their ethical duty to pursue justice. Most notably, critics have alleged and, in some cases shown, that prosecutors have suppressed exculpatory evidence, applied the law selectively, used their sentencing leverage to force plea bargains, and have helped fuel America’s incarceration epidemic. These criticisms locate the origin of these problems in prosecutors’ lack of accountability, the inefficiency of elections, non-transparent decision-making processes, and prosecutors’ desire for political gain. In contrast to this robust criticism of American prosecutors, the German prosecution service is not under fire. This lack of criticism is due to several striking differences not only between the institutional role played prosecutors in both countries, but also between each state’s vision of governance, democratic accountability, and the law itself. Perhaps, most tellingly, it has been the German judges and the prosecutors themselves have launched the most visible calls for reform. service. Moreover, the reformers aim not to make prosecutors more accountable, but rather to increase their political independence. The divergent directions of these calls for reform in Germany and the U.S. contradicts the narrative that, despite differences between the adversarial and inquisitorial traditions, there are significant points of convergence between prosecutorial practices in both countries. To cite one example, although Germany was once hailed as the land without plea-bargaining, today “confession-bargaining” is used to settle a rising percentage of criminal cases. The existence of these superficial similarities, however, obscures deeper and more durable differences between the two systems. These differences are not fully captured by analyses that argue that adversarial systems are becoming more inquisitorial and inquisitorial systems have adopted some adversarial procedures. Although a significant body of scholarship in the field of comparative criminal procedure has focused on the functional, normative, and institutional differences between adversarial and inquisitorial systems, this chapter aims to break new ground by exploring the tension between democratic accountability and independence that undergirds the institutional position of German prosecution offices within an inquisitorial framework.