Controlling Prosecutorial Discretion in Germany

Abstract

Among the major western legal systems, the West German is unique in its concern with controlling prosecutorial discretion. The Germans have isolated the elements of the problem, and they have implemented legislation to limit prosecutorial discretion and, indeed, to exclude it altogether in the most important cases. The German and American systems of criminal procedure differ in fundamental matters of principle and structure, and these differences restrict the direct transferability of insights and practices between the two. Nevertheless, there are also important similarities, especially in the pretrial powers and responsibilities of the prosecutorial office. Americans in search of solutions for our own complex problem of prosecutorial discretion should be aware of the German model.