German and

American

Prosecutions:

An Approach to

Statistical

Comparison 

U.S. Department of Justice Revised Table 15.

Office of Justice Programs 9/25/98 RCK

Bureau of Justice Statistics

A BJS Discussion Paper
German and American Prosecutions 

German and

American

Prosecutions:

An Approach to

Statistical

Comparison

Floyd Feeney

University of California at Davis

School of Law

Davis, California

February 1998, NCJ-166610
German and American

Prosecutions: An Approach

to Statistical Comparison

Much that we know about crime and criminal justice has

come from comparisons between different countries and

systems. Particularly fruitful have been comparisons between the world's two great legal families  the AngloAmerican common law system and the continental civil

law system.

Over hundreds of years, comparisons between these two

great systems have led to many major, and countless

smaller, improvements in both systems and many countries. American criminal justice has benefitted immensely

from this interchange. Penal codes, codes of criminal procedure, minimum and maximum sentences, and organized

police forces are just a few of the ideas that have come

from the continent. 

Even the concept of a public prosecutor may be a product

of this interchange. England had no public prosecutor in

colonial times. It made its first small beginning in 1869

and did not fully adopt the idea until 1985. There have

been public prosecutors in the United States, however,

German and American Prosecutions 1
since early colonial days. While the evidence is far from

conclusive, the first American public prosecutor was

probably Dutch. Having long had a public prosecutor in

their home country, it was natural that the Dutch should

bring this institution with them to the New World. When

New Amsterdam became New York in 1664, the Dutch

system of prosecution seems to have been continued.1

I. The United States and Germany

With a population of over 80 million people, Germany is

the largest West European country and the economic leader

of the European Economic Community. Like the United

States, it is a federal system. This system includes 16 states

 eleven from the former West Germany and five from

2 German and American Prosecutions

1

Van Alstyne (1952); Reiss (1974) suggesting that both Scotland

and America were influenced by the Dutch institution. Other

scholars argue that the American prosecutor was an American

adaptation from the English system. See, e.g., Hammonds

(1939); Langbein (1994). It is possible that both groups of scholars are correct and that the system had different origins in the

different colonies. Compare Goebel and Naughton (1970).

 The American colonists were also clearly familiar with the

French system of public prosecution, the earliest continental system. Montesquieu, whose writings greatly influenced the development of American constitutional thought and who was

generally critical of continental criminal procedure, praised the

French system of prosecution (p. 81). The prosecutor seems to

have been established in a number of colonies, however, before

Montesquieu's work appeared.

 Esmein (1913) discusses the history of prosecution in France.

Although Andre Fournier's suggestion (1893) that the New York

prosecutor is copied from the old style French system seems

clearly incorrect, his observations support the view that the New

York model of prosecution is copied from a European model. 
what was previously East Germany. Although the overall

level of crime is markedly lower than that in the United

States, there is increasing concern about crime, particularly

about problems with drugs and organized crime.

German criminal justice contrasts sharply with the American system in a number of important ways. As in the

United States, the states in Germany are responsible for the

administration of criminal justice. Germany, however, has

a single national criminal code, a single national code of

criminal procedure, and a much more unified court system.

The police and the prosecution are state-level rather than

local agencies. The prosecutor is not an elected official,

but a civil servant operating within a hierarchical system.

There is no death penalty, and sentences for all crimes 

both major and minor  are considerably lower than in the

United States. 

In both countries cases are investigated by the police, sent

to the prosecutor, and then taken to court. The formal

structures in the two countries look quite similar (figure 1).

Germany does not use a jury, however, and the trial process is very different from that in the United States. The

judge, rather than the lawyers, organizes the evidence and

asks most of the questions. The prosecutor and the defense

counsel are allowed to ask questions only after the judges

have finished. The prosecutor and the defense counsel may

ask the judge to call additional witnesses. The decision as

to whether the additional witnesses will be called, however,

is up to the judge. Disclosure of the prosecution case to the

defense in advance of trial is virtually automatic. The judge

receives a written file with all the evidence when charges

are filed. Upon request (almost always made), the defense

counsel also receives access to the written file.

German and American Prosecutions 3
4 German and American Prosecutions

Figure 1

United States Germany

Anklage

Prosecutor's charging

decision

Preliminary hearing

or indictment* or both

(1st charging document)

Complaint*

Trial Hauptverhandlung

(trial)

Police investigation Police investigation

Prosecutor's charging

decision

(1st charging document)

Eröffnung (judicial

review of charge)

Comparison of American

and German prosecutions

*In the United States, the procedures for initiating prosecutions vary considerably in the 50 States and in the Federal

system. The term used for the first charging document also

varies considerably. "Complaint" is used in the Federal system and many States. Other terms used include "information," "indictment," and "warrant." In many States, however,

"information," "indictment," and "warrant" do not mean the

first charging document.
Guilt or innocence is decided by the judge in minor cases,

by a judge and two lay members in more serious cases, by

a panel that normally consists of 2 judges and 2 lay members at the next level and by a panel of 3 judges and 2 lay

members in the most serious cases. When a panel is involved, conviction requires at least two-thirds vote (3 of

4-person panels and 4 of 5-person panels). Sentences also

require a two thirds vote.

German law, like American law, divides offenses into three

levels. Verbrechen (the German equivalent of felonies) are

those crimes for which the minimum penalty is 1 year or

more. In Germany this includes murder, manslaughter,

forcible rape, and robbery but does not include burglary and

many other crimes that would be felonies in the United

States. Vergehen are the German equivalent of misdemeanors. Ordnungswidrigkeiten are the German equivalent of

the American infraction category.

There are also major differences between German and

American concepts of police and prosecution. The American prosecutor has little control over police investigations,

but almost unlimited discretion as to whether a particular

crime should be charged and prosecuted. German law is

almost the exact reverse. The German prosecutor has formal responsibility for investigation, and the police are considered to be a subordinate helping agency. 

German law has traditionally taken a strong stand against

prosecutorial discretion, considering such discretion to be

inconsistent with the rule of law and a violation of the principles of equal justice. Even today German law gives the

prosecutor no discretion in the most serious cases and explicitly requires the prosecutor (and therefore the police as

well) to investigate and prosecute every crime that is committed. German legal writers contrast the German

German and American Prosecutions 5
"legality" principle with the American "opportunity" principle. In the last 25 years German law has been changed to

allow the use of discretion in the more minor crimes. The

use of discretion now appears to be expanding to medium

level crimes.

Rates of crime. The number of serious crimes reported to

the police per 100,000 persons is much higher in the

United States than in Germany. Five murders and forcible

rapes and three or four robberies and felony assaults are

reported in the United States per 100,000 population for

every one in Germany (table 1).

For property crimes, the difference is smaller but still staggering. One and a half times as many burglaries, two and a

half times as many auto thefts and arsons, and twice as

many drug offenses are reported in the United States. Only

for serious theft is the German rate per 100,000 population

higher. Even if some allowance is made for differences in

crime definition, the quantity differences remain huge.2

6 German and American Prosecutions

2

See Appendix A, Offense comparisons, page 42.
Police clearances. When a crime is reported to the police,

the police attempt to identify the offender responsible for

the crime. When such an offender is identified, the crime is

said to be "cleared" or "solved." One measure of the effectiveness of a criminal justice system is the extent to which

the police are able to "solve" the crimes that are reported.

The German clearance rates are substantially higher for all

crimes on the FBI index of major crimes (table 2). Impressionistic evidence suggests that clearance rates are viewed

German and American Prosecutions 7

Table 1

Crimes reported to the police, 1992

Number per

100,000 inhabitants

U.S. Germany

Willful homicide 9 2

Forcible rape 43 8

Robbery 264 71

Aggravated assault 442 120

Burglary 1,168 747

Other serious theft 1,747 2,175

 Motor vehicle theft 632 235

Arson 42 17

Drug offenses 418 187

Note: For differences in the definition of individual

crimes, see Appendix A, Offense comparisons. "Serious theft" in this table includes motor vehicle theft but

excludes burglary.

Sources: United States: Federal Bureau of Investigation, Crime in the United States, 1992, tables 2, 7 (serious theft), 12 (arson), 29 (drugs) (based on arrests).

See Appendix A, Offense comparisons.

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 1 (unpublished data for the former

West Germany and the whole of Berlin  population

65,765,900). These data do not include the remainder

of the former East Germany. The 1992 population for

all of Germany was 80,274,564.
as a more important indicator of system performance in

Germany than in the United States.

Juvenile and young adult suspects. German and American

prosecutions differ greatly in their handling of juvenile and

young adult suspects. Like the United States, Germany has

a juvenile court with special procedures, and like many

U.S. states, Germany uses age 18 as the dividing line

8 German and American Prosecutions

Table 2

Clearance rates, 1992

U.S. Germany

Willful homicide 65% 91%

Forcible rape 52 71

Robbery 24 41

Aggravated assault 56 81

Burglary 13 17

Motor vehicle theft 14 23

Theft 20 31

Arson 15 32

Drug offenses -- 96

-- Not applicable.

Sources: 

United States: Federal Bureau of Investigation,

Crime in the United States, 1992, table 25. As no

separate rate is calculated for serious theft, the overall clearance rate for theft has been used. This rate

does not include motor vehicles. The Uniform Crime

Reports do not include a clearance rate for drug

offenses.

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 1 (unpublished data for the

former West Germany and the whole of Berlin 

population 65,765,900). These data do not include

the remainder of the former East Germany. The 1992

population for all of Germany was 80,274,564. The

rate for theft excludes both burglary and motor vehicle theft.
between juveniles and adults. German juveniles are never

tried as adults, however, even for the most serious crimes,

and German procedures for handling 18 to 20-year olds

deviate even more from the American norm. Most suspects

in this age range are tried in the juvenile court. (See Appendix tables C1-3.)

II. Suspects arrested or referred 

for prosecution

Even within the United States the great variety of laws and

procedures makes it difficult to compare prosecutorial

practices among the different states. International comparisons are even more difficult, but have considerable value

nonetheless. There are many different ways of comparing

prosecutions: the percentage of convictions for suspects

arrested, the percentage of convictions for suspects

charged, the percentage of convictions for suspects tried,

and many others. Because a comparison that begins with

persons arrested or referred by the police to the prosecution

presents a fuller and less distorted picture than other methods of comparison, this report uses suspects arrested or referred to the prosecution as the basis for comparison.

American police have wide discretion in investigating

crimes and may investigate a suspect without any proof

whatsoever that the suspect has committed a crime. American law requires, however, that there be probable cause before the police arrest a suspect. The amount of proof

required for the filing of a charge by the prosecution or an

indictment by the grand jury is formally the same as for

arrests  probable cause. The quantum of proof required

as a practical matter, however, varies considerably from

locality to locality. Many district attorneys require a likelihood of conviction before filing charges, and some states

require more proof for preliminary hearings or indictments

German and American Prosecutions 9
than for arrests. For conviction all states require proof beyond a reasonable doubt. 

German law is more restrictive on the police. German police must have "suspicion" in order to investigate, and the

prosecutor must have "sufficient suspicion" in order to file

a charge. Arrest (vorläufige Festnahme3

) requires both

"suspicion" and either a risk of flight or a problem in identifying the suspect. Longer term detention (Untersuchungshaft) requires both a very high level of proof ("urgent

suspicion") and strong reason for detention (risk of flight,

or other reason). Longer term detention also requires a

court order unless there is a need for immediate action.

Because most persons identified as suspects in felony

crimes in the United States are arrested, the principal statistic concerning suspects identified is the number of persons

arrested. Because Germany uses arrest much less than the

United States, it uses a different statistic. This statistic is

the number of persons referred by name by the police for

prosecution.4

The number of persons arrested or referred for prosecution

per 100,000 population is much higher in the United States

than in Germany (table 3). 

10 German and American Prosecutions

3

Vorläufige Festnahme is frequently translated as "temporary

detention" and Untersuchungshaft as "arrest." This translation is

highly misleading, however, as the "temporary detention" involved in a vorläufige Festnahme would be considered an arrest

in every American State. Untersuchungshaft, which is detention

for the purpose of investigation, is better translated as "pretrial

detention," and Haftbefehl is better translated as "arrest warrant"

or "detention order," depending upon the circumstances.

4

See Appendix B, Finding a common starting point for statistical comparison, page 66.
III. Cases charged by the prosecution

Although German prosecutors lack formal discretion in the

most serious cases and are legally obligated to prosecute all

cases where they lack discretion, they may refuse to charge

even these cases when there is insufficient evidence. Just as

the 2,000-plus U.S. prosecutors differ greatly from one another in their charging practices, so do the 116 German

prosecutorial offices. The range of variation is perhaps not

as extreme as in the United States, but is still quite wide.

In the United States the actual amount of proof required for

charge by the prosecution is often greater than the amount of

German and American Prosecutions 11

Table 3

Adults arrested or referred for prosecution, 1992

Number per

100,000 population

U.S. Germany

Willful homicide 8 2

Forcible rape 13 6

Robbery 53 27

Aggravated assault 174 104

Burglary 112 79

Other serious theft 195 60

Drug offenses 398 131

Sources:

United States: Crime in the United States, 1992, table

41. See Appendix C, Methodology, for the method used

to calculate the rate for serious theft.

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 20 (unpublished data for the former

West Germany and the whole of Berlin  population

65,765,900). These data do not include the remainder of

the former East Germany. The 1992 population for all of

Germany was 80,274,564.
proof legally required for arrest. The formal standard for

charge by the prosecution in most states, however, is the

same as that the formal standard for arrest by the police:

"probable cause." In Germany the formal standard for

charge by the prosecution requires more proof ("sufficient

suspicion") than that necessary for formal identification of

a suspect by the police "suspicion." Another important difference in German and American prosecutorial practice

concerns when charges are filed. In the United States,

prosecutors generally file charges within a few days of

arrest by the police. Prosecutors generally require that the

police investigation be complete enough to provide the

level of proof they need to file the charge, but it is not at

all uncommon that the investigation is not fully completed.

In Germany, prosecutors generally wait until the police investigation is fully completed before filing charges.

Neither country has good prosecutorial statistics. The estimates available, however, indicate that despite the differences in legal philosophy, there is no great difference in the

percentage of referrals charged by the prosecutor in the two

countries. The percentage of cases charged in Germany appears to be similar to that in the United States (table 4).5

(See Appendix C for data limits and methods of

calculation.)

12 German and American Prosecutions

5

The American estimates include felony charges that are later

reduced to misdemeanors but do not include offenses charged

originally as misdemeanors. If these misdemeanor charges were

included the percentage charged would be higher. If the number

of persons who are dead, have absconded, or have been turned

over to other countries were removed from the number referred

from prosecution, the German estimates would also be higher.

See Appendix C, Methodology, page 81.
Crimes of violence. American prosecutors file charges

against adults arrested for forcible rape, robbery, and aggravated assault more often than their German counterparts

do for persons referred for prosecution. German rates for

willful homicide are higher.

Property crimes. German prosecutors file charges against

a higher percentage of the adults referred for burglary and

serious theft than do their American counterparts. The

comparison for serious theft, however, is not very exact.

German law, like American law, considers some kinds of

thefts to be more serious than others. The aggravating factors used, however, are much different from those used in

the United States, and the percentage of thefts that are

German and American Prosecutions 13

Table 4

Adults charged by the prosecution

Percent of 1992 arrests or

referrals for prosecution

Crime U.S. Germany

Willful homicide (63%) (71%)

Forcible rape (54) (45)

Robbery (73) (57)

Aggravated assault (34) (27)*

Burglary (53) (73)

Other serious theft** (32) (55)

Drug offenses (37)*** (73)

Sources: See tables 7-13.

Data Limitations:

Parentheses ( ) indicate an estimate.

United States estimates do not include misdemeanor complaints or charges on other felonies.

*This is a minimum figure, but there is no good estimate of

the actual figure.

**Includes auto theft; a small number of auto thefts

(11-12%), treated as non-serious thefts under German law,

are not inclu- ded.

***U.S. drug arrests include misdemeanors as well as
considered to be aggravated is much smaller. Ordinarily

neither theft from the person nor high value is sufficient to

change the category from ordinary to "more serious" theft.

A high percentage of the German serious thefts are thefts

from motor vehicles that were locked.

Drug crimes. Despite the existence of a single national

law, drug enforcement policies in Germany vary considerably from state to state. States in northern Germany, particularly those with social democratic governments, prosecute

fewer cases than other German states. Because many drug

cases in the United States are initially filed as misdemeanors (and therefore not included in the available statistics), it

is particularly difficult to compare United States and German prosecutorial filing rates for drug offenses. The indications, however, suggest that German prosecution rates for

the most serious drug violations are lower than those in the

United States.

14 German and American Prosecutions
IV. Convictions

Preliminary hearing and indictment. In most American

States prosecutorial charges are reviewed by a court or a

grand jury before the defendant is placed on trial. In States

where prosecutors review the police charges carefully,

courts and grand juries approve 90% or more of the prosecutorial charges. In States where prosecutors uncritically

adopt the police charges, the approval rate is often much

lower. Germany has no grand jury, and there is no evidentiary hearing to review prosecutorial charges. Before a defendant is placed on trial, however, a judge must approve

the opening of the trial proceeding (Eröffnung des

Hauptverfahrens). The judge's review is based on looking

at the case file rather than a hearing, and results in approval

of the filing in roughly 99% of the cases.6

Convictions. Conviction in the United States requires

proof beyond a reasonable doubt. Although the verbal formulas do not appear to be as strong, German law also has

doctrines requiring uncertainties to be resolved in favor of

the defendant. Conviction requires that the judge or judges

be personally convinced of guilt. In case of doubt, judges

are instructed to acquit. Whether the actual standards of

proof are similar or different cannot be determined by summary statistics such as those used in this study. It is interesting nonetheless to compare the results in the two

countries.

German and American Prosecutions 15

6 Statistisches Bundesamt, Rechtspflege, Reihe 2, 1992, p. 56.

The figures do not include cases tried in the upper court (Landgericht), but the number tried in the upper court is so small that it

would probably not change the percentage. Although the German system once required an evidentiary proceeding similar to

the preliminary hearing, the process was simplified in 1974.

Judges now simply review the case file to determine whether

there is sufficient evidence to send the case to trial.
For most offenses, the difference between the two systems

in the percentage of defendants convicted on the most serious offense charged are not great (table 5). If convictions

on lesser charges are taken into account, the differences in

the conviction rates for the two systems are generally even

smaller (table 6).

16 German and American Prosecutions

Table 5

Adults convicted on offense charged

Percent of 1992 arrests or

referrals for prosecution

Offense charged U.S. Germany

Willful homicide 34% 46%

Forcible rape 23 26

Robbery 34 30

Aggravated assault 12 17

Burglary 33 39

Other serious theft* 18 13

Drug offenses 23** 32

Sources: See tables 7-13.

Notes:

Percentages do not include convictions on lesser charges.

*Includes auto theft; a small number of auto thefts

(11-12%), treated as non-serious thefts under German law,

are not included.

**U.S. drug arrests include misdemeanors as well as
German and American Prosecutions 17

Table 6

Adults convicted on any charge

Percent of 1992 arrests or

referrals for prosecution

Crime U.S. Germany

Willful homicide 46% (48%)

Forcible rape 34 (33)

Robbery 46 (38)

Aggravated assault 18 --

Burglary 41 (41)

Other serious theft* 22 --

Drug offenses 27** --

-- Not applicable.

Sources: See tables 7-13.

Data limitations:

Parentheses ( ) indicate an estimate.

U.S. figures include all convictions in cases in which the prosecution filed a felony charge. The U.S. figures, however, do not include convictions for felony arrests in which the initial court

charge was a misdemeanor. 

*Includes auto theft; a small number of auto thefts (11-12%),

treated as non-serious thefts under German law are not included.

**U.S. drug arrests include misdemeanors as well as felonies.
Method of processing. Although the conviction rates between the two systems do not differ greatly, there are substantial differences in the way these conviction rates come

about. The United States has a large number of dismissed

cases, a low number of acquittals at trial, and most convictions result from pleas or plea bargaining. Germany has

fewer dismissals, many more trials, and for most offenses

more acquittals (tables 7-13). In both countries the rate of

acquittal is higher for willful homicide and forcible rape

than for other violent crimes. 

18 German and American Prosecutions

Table 7

Dispositions  Willful homicide

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or

referrals

19,994 1,080

Complaints filed (63%)* (71%)

Dismissed after filing 14% 2%

Acquitted 3% 4%

Convicted of

  Any charge 46%* (48%)

  Willful homicide 34% 46%

*Does not include misdemeanor complaints.

Parentheses ( ) indicate an estimate.

Sources:

United States: Crime in the United States, 1992;

Felony Defendants in Large Urban Counties, 1992. The

number of willful homicide complaints is estimated to be

12,624. 

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 20 (unpublished data for former West Germany plus all of Berlin); Klaus Sessar, "Die Umgehung der

lebenslangen Freiheitsstrafe," Monatsschrift für Kriminologie und Strafrechtsreform 63: 193, 199 (1980)(percent

charged); Statistisches Bundesamt, Strafverfolgung 1993,
German and American Prosecutions 19

Table 8

Dispositions  Forcible rape

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or

referrals

33,619 3,754

Diverted 1% (1%)

Complaints filed (54%)* (45%)

Dismissed after filing 16% 2%

Acquitted 2% 5%

Convicted of

  Any charge 34%* (33%)

  Forcible rape 23% 26%

*Does not include misdemeanor complaints.

Parentheses ( ) indicate an estimate.

Sources:

United States: Crime in the United States, 1992;

Felony Defendants in Large Urban Counties, 1992. The

number of complaints is estimated to be 18,048.

In addition to complaints for forcible rape, complaints filed

include complaints for other forcible sex acts.

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik,

1992, table 20 (unpublished data for former West Germany

plus all of Berlin); Dieter Dölling, Polizeiliche Ermittlungstätigkeit und Legalitätsprinzip (Wiesbaden: Bundeskriminalamt, 1987), vol. 2, p. 313 (percent charged, individuals),

p.315 (convictions); Statistisches Bundesamt, Strafverfolgung 1993, tables 2.1 and 2.2.
20 German and American Prosecutions

Table 9

Dispositions  Robbery

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 135,626 18,012

Diverted 1% (1%)

Complaints filed (73%)* (57%)

Dismissed after filing 24% 4%

Acquitted 1% 3%

Convicted of

  Any charge 46%* (38%)

  Robbery 34% 30%

*Does not include misdemeanor complaints. 

Parentheses ( ) indicate an estimate.

Sources:

United States: Crime in the United States, 1992;

Felony Defendants in Large Urban Counties, 1992. The

number of robbery complaints is estimated to be 98,376. 

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 20 (unpublished data for former West Germany plus all of Berlin); Dieter Dölling, Polizeiliche

Ermittlungstätigkeit und Legalitätsprinzip (Wiesbaden:

Bundeskriminalamt, 1987), vol. 2, p. 235 (percent charged,

individuals), p. 237 (convictions); Statistisches Bundesamt,

Strafverfolgung 1993, tables 2.1 and 2.2. 
German and American Prosecutions 21

Table 10

Dispositions  Aggravated assault

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or

referrals

445,369 68,182

Diverted 2% (2%)

Complaints filed (34%)* (27%)**

Dismissed after filing 14% 9%

Acquitted 1% 1%

Convicted of

  Any charge 18%* --

  Aggravated assault 12% 17%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints. 

**Minimum figure. Does not include cases charged with

lesser crimes or cases charged with aggravated assault but

convicted of lesser crimes.

Sources:

United States: Crime in the United States, 1992; Felony Defendants in Large Urban Counties, 1992. The number of felony assault complaints is estimated to be 152,928. 

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik,

1992, table 20 (unpublished data for former West Germany

plus all of Berlin); Statistisches Bundesamt, Strafverfolgung

1993, tables 2.1 and 2.2. Police data include attempted murder and attempted manslaughter. See Appendix C, Methodology for estimation procedure used for cases charged.
22 German and American Prosecutions

Table 11

Dispositions  Burglary

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or

referrals

284,558 51,898

Diverted 1% (2%)

Complaints filed (53%)* (73%)

Dismissed after filing 11% 6%

Acquitted 0.4% 2%

Convicted of

  Any charge 41%* (41%)

  Burglary 33% 39%

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints.

Sources:

United States: Crime in the United States, 1992;

Felony Defendants in Large Urban Counties, 1992. The

number of burglary complaints is estimated to be 150,576.

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 20 (unpublished data for former West Germany plus all of Berlin); Dieter Dölling, Polizeiliche

Ermittlungs- tätigkeit und Legalitätsprinzip (Wiesbaden:

Bundeskriminalamt, 1987), vol. 2, p. 153 (percent charged,

individuals), p. 155 (convictions); Statistisches Bundesamt,

Strafverfolgung 1993, tables 2.1 and 2.2.
German and American Prosecutions 23

Table 12

Dispositions  Serious theft

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 498,366 39,493

Diverted 2% (8%)

Complaints filed (32%)* (55%)

Dismissed after filing 7% 2%

Acquitted 0.4% 0.7%

Convicted of

  Any charge 22%* --

  Serious theft 18% 13%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints. 

Sources:

United States: Crime in the United States, 1992;

Felony Defendants in Large Urban Counties, 1992. The estimated number of complaints is 157,608. 

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 20 (unpublished data for former West Germany plus all of Berlin); Wiebke Steffen, Analyse

polizeilicher

Ermittlungstätigkeit aus der Sicht des späteren Strafverfahrens (Wiesbaden: Bundeskriminalamt, 1976), p. 327

(percent charged); Statistisches Bundesamt, Strafverfolgung
24 German and American Prosecutions

Table 13

Dispositions  Drug offenses

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 1,015,732 86,195

Diverted 3% (1%)

Charges filed (37%)* (73%)

Dismissed after filing 7% 5%

Acquitted 0.3% 1%

Convicted of

  Any charge 27%* --

  Drug charge 23% 32%

-- Not applicable

Parentheses ( ) indicate an estimate.

*Misdemeanor filings not included. Drug arrests include misdemeanors as well as felonies.

Sources: 

United States: Crime in the United States, 1992; Felony

Defendants in Large Urban Counties, 1992. The number of

felony drug complaints is estimated to be 379,560. There are

no statistics for arrests made by federal officers. The 30,547

suspects handled by U.S. attorneys in 1992 (including 15,596

drug complaints filed in federal court) are not included in the

above figures. Sourcebook of Criminal Justice Statistics,

1992, (NCJ-143496), p. 477.

Germany: Bundeskriminalamt, Polizeiliche Kriminalstatistik,

1992, table 20 (unpublished data for former West Germany

plus all of Berlin); Johannes Hellebrand, Bekämpfung der

Rauschgiftkriminalität durch sinnvollen Einsatz des Strafrechtes (Wiesbaden: Bundeskriminalamt, 1993), p.41 (percent charged), Statistisches Bundesamt, Strafverfolgung

1993, tables 2.1 and 2.2.
German defendants are not asked to plead whether they are

innocent or guilty, and there is some kind of trial in most

serious cases (table 14). If the defendant admits guilt, the

trial is sometimes truncated, and prosecutors sometimes

offer concessions on the sentence to be recommended in

exchange for admissions of guilt. Even in these cases, however, there is a trial. Bargaining takes place, but is the exception rather than the rule, and the overall amount of

bargaining is not great by American standards.7

 The only

German and American Prosecutions 25

7

One German writer estimates that some bargaining takes place

in 30% of the cases. Joachim Herrmann, "Bargaining Justice 

A Bargain for German Criminal Justice, 53 U. Pittsburgh L.

Rev. 755, 756 (1992).

Table 14

Trials in adult cases

Percent of cases charged

U.S. Germany

Willful homicide 21% 88%

Forcible rape 4 93

Robbery 6 88

Aggravated assault 4 70

Burglary 6 87

Other serious theft 6 87

Arson -- 86

Drug offenses 5 87

--Not applicable.

Sources:

United States: Felony Defendants in Large Urban Counties, 1992.

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

2.1 and 2.2.

No attempt has been made to reduce the percentage of German

cases going to trial because of penal orders, a non-trial procedure

available in the German system. There are no national data available in Germany that count penal orders by offense. Ad hoc studies indicate that the percentage of penal orders for willful

homicide, forcible rape, robbery, and burglary are very low  1%

or less of all charges.
instance in which there is no trial in the German system is

when a "penal order"(Strafbefehl) is entered. In cases of

lesser seriousness, German prosecutors may dismiss the

case on condition that the defendant voluntarily accepts a

lesser penalty. If the defendant and the judge accept the

prosecutor's proposal, there is no trial.

At least 6% of all German homicide suspects are found not

responsible by reason of insanity. This is a smaller percentage than was the case in Germany 30 years ago, but this

percentage still appears to be higher than the percentage in

the United States.8

 Germany also appears to make greater

use than the United States of concepts such as diminished

capacity that reduce the level of the crime even when the

defendant is convicted. Around 40% of the homicide suspects who are convicted, for example, appear to be convicted at a lower level of seriousness because of mental

health problems.

26 German and American Prosecutions

8

Statistisches Bundesamt, Strafverfolgung 1993, table 5, shows

the number of defendants excused by reason of insanity after

charges are filed in court. For the trend in Germany, compare

the current figures with earlier years. See also Rasch (1986), pp.

62, 64, 79. There are no national U.S. figures, but California

figures show that only 3 of the 2,017 homicide arrestees whose

cases were included in the 1992 dispositions were acquitted by
V. Sentencing

The German penal code gives judges considerable sentencing discretion. On the whole, however, both the sentencing

structure contained in the German penal code and the actual sentences imposed by German judges are lower than

those for similar offenses in the United States. 

Sentences for violent crimes. Because the German constitution forbids use of the death penalty, none of the defendants arrested or referred for willful homicide (homicide

that is not accidental) in Germany was sentenced to death,

as compared with 1% of those arrested and 5% of those

sentenced for willful homicide in the United States (see

Appendix A, Offense comparisons). Six percent of those

referred for willful homicide were sentenced to life imprisonment in Germany as compared with 3% of the U.S.

arrestees. Forty-two percent of the adults sentenced for

willful homicide were sentenced to 1 year or more in

prison in Germany, as compared with only 31% in the

United States (table 15).

German and American Prosecutions 27
28 German and American Prosecutions

Table 15

Sentences  Willful homicide

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 19,994 1,080

Willful homicide complaints filed (63%)* (71%)

Convicted 46%* (48%)

  Willful homicide 34% 46%

  Other charges 12%* (2%)

Sentenced to prison (1 year or more) 37%* --

  Willful homicide 31% 42%

  Other charges 6%* --

Sentenced to life imprisonment (willful

homicide) 3% 6%

Sentenced to death (willful homicide) 1% 0%

Percent of all persons convicted of willful

homicide and given a sentence 

 of 1 year or more 91% 93%

 of life imprisonment 9% 14%

 of death 5% 0%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints.

Sources: See table 7. 

United States: Felony Defendants in Large Urban Counties, 1992;

Sourcebook of Criminal Justice Statistics, 1994, p. 590.

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables 3.1,

4.1. Suspended sentences of 1 year or more are not included.
The percentage of adult offenders arrested or referred for

forcible rape who receive 1 year or more in prison is similar in Germany and the United States (table 16). Sentences

for robbery and aggravated assault, however, are noticeably

lower in Germany (tables 17 and 18).

German and American Prosecutions 29

Table 16

Sentences  Forcible rape

Adults arrested or referred for prosecution in 1992 

U.S. Germany

Number of arrests

or referrals 33,619 3,754

Forcible rape complaints filed (54%)* (45%)

Convicted 34%* (33%)

 Forcible rape 23% 26%

 Other charges 11% (7%)

Sentenced to prison (1 year or more) 19% --

 Forcible rape 15% 15%

 Other charges 4% --

Percent of all persons convicted of

forcible rape and given a sentence

of 1 year or more 66% 57%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints.

Sources: See table 8.

United States: Felony Defendants in Large Urban Counties,

1992. In addition to complaints for forcible rape, complaints filed

include complaints for other forcible sex acts.

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

3.1, 4.1. Suspended sentences of 1 year or more are not included.
30 German and American Prosecutions

Table 17

Sentences  Robbery

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 135,626 18,012

Robbery complaints filed (73%)* (57%)

Convicted 46%* (38%)

  Robbery 34% 30%

  Other charges 12%* (8%)

Sentenced to prison (1 year or more) 27%* --

  Robbery 24% 14%

  Other charges 3%* --

Percent of all persons convicted of

robbery and given a sentence (1 year

or more) 70% 47%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints.

Sources: See table 9. 

United States: Felony Defendants in Large Urban Counties,

1992.

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

3.1, 4.1. Suspended sentences of 1 year or more are not included.
German and American Prosecutions 31

Table 18

Sentences  Aggravated assault

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 445,369 68,182

Aggravated assault complaints filed (34%)* (27%)**

Convicted 18%* --

  Aggravated assault 12% 17%

  Other charges 6%* --

Sentenced to prison (1 year or more) 4%* --

  Aggravated assault 4% 1%

  Other charges 0%* --

Percent of all persons convicted of

aggravated assault and given a sentence (1 year or more) 32% 6%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints. 

**Minimum figure. Does not include cases charged with lesser

crimes or cases charged with aggravated assault but convicted of

lesser crimes. 

Sources: See table 10.

United States: Felony Defendants in Large Urban Counties,

1992. 

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

3.1, 4.1. Suspended sentences of 1 year or more are not included.
Theft crimes. German sentences for theft crimes are in

general much lower than those in the United States. Although the percentage of defendants convicted of burglary

as opposed to some lesser crime is higher in Germany than

in the United States, the percentage given a sentence of 1

year or more in prison is much lower (table 19). German

sentences for serious theft are also considerably lower than

those in the United States (table 20). (There are significant

differences in the definition of serious theft in the two

countries.) Many German defendants receive fines, using

the German day fine system.

32 German and American Prosecutions

Table 19

Sentences  Burglary

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 284,558 51,898

Burglary complaints filed (53%)* (73%)

Convicted 41%* (41%)

  Burglary 33% 39%

  Other charges 8%* (2%)

Sentenced to prison (1 year or more) 16%* --

  Burglary 14% 5%

  Other charges 2%* --

Percent of all persons convicted of

burglary and given a sentence (1

year or more) 44% 13%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints.

Sources: See table 11. 

United States: Felony Defendants in Large Urban Counties,

1992. 

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

3.1, 4.1. Suspended sentences of 1 year or more are not included.
German and American Prosecutions 33

Table 20

Sentences  Serious theft

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 498,366 39,493

Serious theft complaints filed (32%)* (55%)

Convicted 22%* --

  Serious theft 18% 13%

  Other charges 4%* --

Sentenced to prison (1 year or more) 7%* --

  Serious theft 7% 1%

  Other charges 0%* --

Percent of all persons convicted of

serious theft and given a sentence

(1 year or more) 39% 9%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints.

Sources: See table 12. 

United States: Felony Defendants in Large Urban Counties,

1992. 

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

3.1, 4.1. Suspended sentences of 1 year or more are not included.
Drug crimes. German law, like American law, punishes

drug dealers more severely than casual users. The overall

conviction rate for drug offenses is somewhat higher (table

21). As with other offenses, the number of dismissals is

lower and the number of acquittals higher. Penalties for

drug violations, however, are in general much lower in

Germany than in the United States. German sentences for

drug crimes are as a consequence considerably lower than

in the United States. (Again there are differences in the

way crimes are defined in the two countries.)

34 German and American Prosecutions

Table 21

Sentences  Drug offenses

Adults arrested or referred for prosecution in 1992

U.S. Germany

Number of arrests or referrals 1,015,732 86,195

Drug offenses complaints filed (37%)* (73%)

Convicted 27%* --

  Drug offenses 23% 32%

  Other charges 4%* --

Sentenced to prison (1 year or more) 9%* --

  Drug offenses 9% 4%

  Other charges 0%* --

Percent of all persons convicted of drug

offenses and given a sentence (1 year or

more) 38% 12%

-- Not applicable.

Parentheses ( ) indicate an estimate.

*Does not include misdemeanor complaints. Drug arrests include

misdemeanors as well as felonies.

Sources: See table 13. 

United States: Felony Defendants in Large Urban Counties, 1992. 

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

3.1, 4.1. Suspended sentences of 1 year or more are not included.
VI. Arrest and pretrial detention

Most felony cases in the United States begin with arrest

of the suspect. The police make the vast majority of these

arrests without a warrant. The suspect is then brought before a court that decides whether the suspect is to be released on bail or on the defendant's own recognizance. The

German law is quite different. The German police are not

allowed to arrest a suspect simply because they have probable cause to believe that the suspect has committed an offense. They are permitted to arrest without a warrant only

when the suspect is caught in the act or when there is a risk

of flight or a problem in identifying the suspect (vorläufige

Festnahme). Detention for longer than 1 day requires a

warrant issued by a court (Haftbefehl). Courts are allowed

to issue warrants only when there is "urgent suspicion" of

guilt (a standard higher than that required for filing

charges) and a risk of flight or some other grounds for

holding the suspect.

The consequence of these tight German laws is that far

more cases begin without arrest  even for serious offenses  than in the United States. Although there are no

national statistics, studies of German practice indicate that

only 40 to 50% of the forcible rape, robbery, and burglary

suspects are arrested without a warrant.9

 When arrests with

a warrant are taken into account, it is clear that the German

system uses pretrial detention considerably less than the

American system. Table 22 compares the number of suspects who are arrested at some time during the process.

Table 23 compares the number of suspects who are detained until the close of the proceedings in the trial court.

German and American Prosecutions 35

9

Vorläufige Festnahme. Steffen (1976), p. 170; Dölling (1987),

pp. 112, 202, 360.
36 German and American Prosecutions

Table 22

Percent of persons charged who are arrested

U.S. Germany

Willful homicide 100% 71%

Forcible rape 100 46

Robbery 100 39

Aggravated assault 100 5

Burglary 100 19

Other serious theft 100 17

Drug offenses 100 19

Sources:

United States: Estimated. Although a few persons who

are charged for the offenses listed are not arrested, the

percentage is too small to be included in this table.

This table also does not include suspects who are arrested but not charged. See Appendix C, Methodology.

Germany: Based on figures for Untersuchungshaft. No

national figures are available for vorläufige Festnahme. Statistisches Bundesamt, Strafverfolgung

1993, table 6.1. This table includes both adults and

juveniles (and it is not possible to separate them). If a

case is filed by the prosecution as a particular charge

(for example, robbery), but disposed of at a lower

charge (for example, theft), the case is not included in

the figures for the higher offense. This method of recordkeeping overstates the amount of detention.
German and American Prosecutions 37

Table 23

Pretrial release  cases charged

Percent released before

final case disposition

U.S. Germany

Willful homicide 27% 29%

Forcible rape 50 54

Robbery 48 61

Aggravated assault 68 95

Burglary 51 81

Other serious theft 67 83

Drug offenses 69 8

Sources:

United States: Felony Defendants in Large Urban

Counties, 1992 (unpublished data).

Germany: Statistisches Bundesamt, Strafverfolgung

1993, table 6.1. This table includes both adults and

juveniles (and it is not possible to separate them). Because the German figures are based on tables that

show whether the defendant was "ever detained"

rather than "detained until disposition," they understate the number released before final case disposition. Because the German figures also omit all

offenses that are disposed of on lesser charges, they

further understate the number released before final
VII. Lesser crimes

Both the United States and Germany have developed procedures for handling minor crimes on an expedited basis.

In the United States these procedures include guilty pleas,

diversion, and prosecutorial dismissals. For infractions and

some very minor crimes, fixed payment schedules (often

called "the forfeiture of bail") are also widely used.

Germany makes no formal use of the guilty plea. Germany

makes extensive use of fines, however, instead of jail for

minor offenses. The fines imposed are day fines that attempt to establish punishments related to the defendant's

ability to pay. Frequently the fines involve installment payments. Germany also uses fixed payment schedules but

only for administrative offenses that are not considered

criminal (Ordunungswidrigkeit). Germany has developed a

prosecutorial diversion procedure that is widely used for

minor crimes. Under this procedure prosecutors do not formally prosecute defendants who make specified payments

to specified charities or other good causes. Although quite

differently administered, this scheme, like fixed payment

schedules, allows large numbers of cases to be handled administratively.

38 German and American Prosecutions
Definitions

Arrested or referred for prosecution  Processing for

most cases of serious crime in the United States begins

with an arrest. Because German law does not allow arrest

to be routinely used, even for serious offenses, this report

uses the German statistics for persons referred by the police

to the prosecutor for prosecution. See Appendix B, Finding

a common starting point for statistical comparison, page

66.

Complaints filed  In the United States, most persons

arrested for a crime are referred to the prosecutor. If the

prosecutor believes that the evidence is sufficient to warrant a charge, the prosecutor typically files a formal charge

in court. In the federal system and in many states, this formal charge is called a complaint. Similarly, in Germany if

the prosecutor believes that the evidence indicates guilt, the

prosecutor files a charge in court. This charge is called the

Anklage. 

In the tables the number of complaints filed is given as a

percentage of the number of persons arrested or referred for

prosecution. For the United States, this percentage includes

felony charges that are later reduced to misdemeanors, but

does not include offenses that are originally charged as

misdemeanors. The German figures include both kinds of

charges. 

Dismissed after filing  After the prosecutor has filed

charges, many things can happen to a case. The prosecutor

may later decide that the evidence does not warrant prosecution or that the case should be dropped for other reasons.

If the charges are dropped either on the initiative of the

prosecutor or on the initiative of the court or with the

German and American Prosecutions 39
approval of the court, the decision is identified in the tables

as "Dismissed after filing." The German figures include

Einstellung ohne Massregeln for adults and Verfahrenseinstellung zusammen for 18 to 20-year-olds handled as

juveniles. 

Acquitted  The U.S. figures include both acquittals by a

jury and acquittals by a judge sitting without a jury. The

German figures include Freispruch, aber Massregeln and

Freispruch ohne Massregeln for adults and Freispruch for

18 to 20-year-olds handled as juveniles. 

Convictions  The U.S. figures include pleas of guilty,

convictions by a jury, and convictions by a judge sitting

without a jury. The German figures are based on convictions by a judge sitting alone or a judge sitting with other

professional or lay judges (die verurteilt wurden). These

figures also include penal orders that are agreed to by all

parties (Strafbefehle).

In the tables the number of convictions is given as a percentage of the persons arrested or referred for prosecution

for the table offense (that is, the offense discussed by the

table). Two percentages are given for each table. The first

is the percentage of persons arrested or referred for prosecution for the table offense who are convicted of any

charge. For example, in the case of robbery (table 9) this

percentage would be that proportion of the persons referred

for prosecution for robbery who have been convicted of

robbery or any other charge. The second percentage given

concerns those defendants who are convicted of the table

offense itself. For the robbery table, this second percentage

would be that proportion of the persons referred for prosecution for robbery who have been convicted of the crime of

robbery itself. Because some persons charged with robbery

will be convicted of lesser or other offenses, this

40 German and American Prosecutions
percentage is necessarily lower than the percentage given

for those convicted of any offense.

Sentences  The tables on sentencing show the percentage

of defendants arrested or referred for prosecution for the

table offense (i.e., the offense discussed by the table) who

have received a prison sentence of 1 year or more.

The percent of those charged who receive a prison sentence

of 1 year or more is shown separately for: (1) those convicted of the table offense (robbery, for example); (2) those

convicted of some other offense; and (3) both combined.

The table also includes the percentage having a prison sentence of 1 year or more as a percentage of those sentenced

for the table charge.

Diverted  In both Germany and the United States some

persons accused of crime are handled without full prosecution. Generally the accused is offered some alternative to

full prosecution, such as participation in a drug treatment

program, restitution, or payment of a small fine. In the

United States prosecution in such cases is often suspended

until successful completion of the alternative measure. In

the German system, the law allows the alternative measure

to be substituted for full prosecution. 

In both systems diversion may take place prior to the filing

of a charge or after a charge has already been filed. The

table figures for the United States include only those diversions occurring after the filing of a felony charge by the

prosecution. They do not include diversions taking place

before a felony charge has been placed. If these were included, it is likely that at least for some offenses the percentage diverted would be higher. Because the German

estimates include diversions both before and after the

filing of an Anklage, the comparisons are not exact.

German and American Prosecutions 41
Appendix A

Offense comparisons

Willful homicide

United States: The Uniform Crime Reports define

"murder and nonnegligent manslaughter" as: "the willful

(nonnegligent) killing of one human being by another.

Deaths caused by negligence, attempts to kill, assaults to

kill, suicides, accidental deaths and justifiable homicides

are excluded. Justifiable homicides are limited to: (1) the

killing of a felon by a law enforcement officer in the line of

duty; and (2) the killing of a felon by a private citizen."

Attempts are not included in this category. Manslaughter

by negligence is a Part I crime but not part of the index. It

includes the killing of another person through gross negligence. Traffic fatalities are excluded. 

The 1992 Bureau of Justice Statistics report Felony Defendants in Large Urban Counties defines "murder" to include

"homicide, nonnegligent manslaughter, and voluntary

homicide." The category "does not include attempted murder (classified as felony assault), negligent homicide, involuntary homicide, or vehicular manslaughter."

Neither the Uniform Crime Reports nor the BJS data include attempts.

Germany: The German police statistics (Polizeiliche

Kriminalstatistik) contain data for crimes reported to the

police (Erfasste Fälle) and for persons referred to the

prosecution (Tatverdächtige). These statistics have a

category for murder (Mord) and a separate category for

manslaughter (Totschlag). The murder statistics include

special subcategories for robbery murders and rape murders

(Raubmord and Sexualmord). Killing at the request

of the victim, which includes mercy killings, is not

42 German and American Prosecutions
considered to be murder or manslaughter, but is a separate,

less serious category (Tötung auf Verlangen), as is the killing by the mother during or shortly after birth of a child

born out of wedlock (Kindestötung). As both would be

considered either murder or manslaughter in the United

States, both are included in the comparison.

Mord and Totschlag in German law require intentional killing. German law, however, does not contain anything like

the felony murder doctrine. If a robbery or a rape results in

an unintended death, the death is punished not as murder or

manslaughter, but as a separate lesser crime. This separate

lesser crime is not considered part of the law of homicide,

but rather as part of the law of robbery or rape. The crime

is called robbery with death as a consequence or rape with

death as a consequence (Raub mit Todesfolge or Vergewaltigung mit Todesfolge). Most crimes in these categories

would be considered felony murder in many states in the

United States. In those U.S. States in which felony murder

requires causation but no negligence or intention, felony

murder is broader than Raub mit Todesfolge and Vergewaltigung mit Todesfolge, because the two German crimes require gross negligence. Although these crimes are not

listed with homicides in the German statistics, they are included in the homicide category in the comparison.

Another lesser crime concerns assault with death as a consequence (Körperverletzung mit Todesfolge). Some or all

of these crimes are crimes committed with the intent to inflict serious bodily injury, an intent that suffices for murder

in many States in the United States. The less serious instances of this crime are hard to classify. Although some

might be considered involuntary manslaughter (a form of

negligence) in the United States, most would probably be

classified as murder or manslaughter. German law also has

a negligent homicide category, and the fact that these

German and American Prosecutions 43
crimes have been classified as Körperverletzung mit Todesfolge instead of negligent manslaughter under German law

seems determinative. All have therefore been included in

the comparison.

Weiher (1989), pp. 34-36, discusses the difference between

Totschlag and Körperverletzung mit Todesfolge. He says it

is possible to make a doctrinal distinction, but that in practice there are a lot of problems in distinguishing the two

crimes. He includes both Körperverletzung with Todesfolge and Tötung auf Verlangen in his study.

There is also a separate crime for negligently causing

death by giving or administering drugs to another [BtM

§30(3)].10 In some U.S. States, crimes in this category

would be felony murder; in others, involuntary manslaughter or some other lesser crime. It is not included in the

comparison.

Mord is clearly a narrower crime than murder under

American law. The various German homicide crimes taken

together, however, approximate the American categories. 

Mord (StGB §211)11 is committed by "anyone who kills a

human being: from a lust to kill, to satisfy his sex drive,

from covetousness or other base motives; treacherously or

cruelly or by means endangering the community or for the

purpose of making possible or concealing the commission

of another crime." 

Totschlag (StGB §212) is the German version of manslaughter. It is defined as the killing of "a human being

44 German and American Prosecutions

10German Drug Law (Betäubungsmittlelgesetz).

11German Penal Code (Strafgesetzbuch).
under circumstances not constituting murder ... ." If the

person committing Totschlag "through no fault of his own,

had been aroused to anger by the abuse of his person or of

a relative of his or by the grossly insulting behavior of the

victim, and committed the homicide while in a state of passion, or the circumstances otherwise indicate the existence

of a less serious case," the Totschlag is punished less severely. (StGB §213).

Tötung auf Verlangen (StGB §216) is defined as "anyone

who kills another person at the express and genuine request

of that person."

Kindestötung (a separate offense, StGB §217) is committed

when "a mother ... kills her illegitimate child during or immediately after birth." 

Raub mit Todesfolge (StGB §251) is defined as "recklessly" causing "the death of another person...in committing the robbery."

Vergewaltigung mit Todesfolge (StGB §177(3)) is defined

as "recklessly" causing "the death of the victim" in committing the act of forcible rape.

Körperverletzung mit Todesfolge (StGB §226) is defined as

inflicting "bodily harm" causing "the death of the victim."

The drug counterpart [(BtMG §30(3))] is defined as "negligently causing the death of another by administering drugs

or allowing the other directly to consume drugs." 

There are two kinds of arson that involve homicide. One

kind (StGB §307) punishes arson that causes "the death of

a person who was present at the time of the offense in one

of the spaces which was set on fire." This would be considered felony murder in many States in the United States. It

German and American Prosecutions 45
is excluded from the comparison, however, because there

are no separate statistics for it. All the indications are that

the number of offenses in this category are very small.

The second kind (StGB §309) punishes an action that "negligently causes a fire ... [that causes] the death of a person."

This crime would not be considered arson in most U.S.

States and the death would not be considered felony murder. In most States it would be classified as involuntary

manslaughter or as not falling within the criminal law. This

category of arson is also excluded from the comparison.

Statistics: Because the German statistics concerning homicide include attempts and the American statistics do not,

some adjustment is necessary in order to make comparisons. This report removes attempts from the German

statistics. 

It is possible to separate completed crimes for Mord,

Totschlag, Kindestötung, and Körperverletzung mit Todesfolge in the police statistics. These are all included in the

analysis. Vergewaltigung mit Todesfolge and Raub mit

Todesfolge are not given separately in the police statistics.

The counts from the court statistics have been added for

these categories.

It is also possible to make this separation in the court statistics (Strafverfolgung) for Mord, as this category is separated into Mord and Versuchter Mord. It is more difficult

to make the separation in the court statistics for Totschlag,

Tötung auf Verlangen, and Kindestötung. These categories

include attempts, and many tables do not separate the attempts from the completed crimes. Table 2.4 does make

the distinction, but only for sentenced offenders. Data for

the years 1990-1993 show that, except for Totschlag, virtually all cases are completed crimes. It shows 10 Tötung auf

46 German and American Prosecutions
Verlangen (all completed) and 22 Kindestötungen (19 completed). For Totschlag, the data show 1,521 cases (880

completed). The 58% completed proportion for sentenced

offenders contrasts dramatically with the under 30% completed proportion in the police statistics. This suggests that

most attempted Totschlag cases are charged as a lower

level crime rather than as attempted Totschlag.

Because the Todesfolge categories of cases exist only

where the victim has died, one would expect most cases in

these categories to be completed crimes. This is what Table

2.4 shows for 1990-1993. During these years there were 48

Raub mit Todesfolge (42 completed), 6 Vergewaltigung mit

Todesfolge (3 completed), and 198 Körperverletzung mit

Todesfolge (all completed). The few attempts indicated in

the statistics are most likely instances where the victim

died, but the underlying robbery or rape was not

completed.

Forcible rape

United States: The Uniform Crime Reports through 1992

are limited to forcible crimes involving sexual intercourse.

The definition is "the carnal knowledge of a female forcibly and against her will. Included are rapes by force and

attempts or assaults to rape. Statutory offenses (no force

used  victim under age of consent) are excluded." 

The 1992 BJS report Felony Defendants in Large Urban

Counties defines rape as including "forcible intercourse,

sodomy, or penetration with a foreign object. It does not

include statutory rape or nonforcible acts with a minor or

someone unable to give legal consent, nonviolent sexual

offenses, or commercialized sex offenses," page 38.

German and American Prosecutions 47
Germany: The German crime of Vergewaltigung is similar

to the classic American definition of rape. It is limited to

violence or threats of violence against females and applies

only to normal intercourse. Rape within marriage became a

crime in 1996. Other forcible sexual acts are included in

sexuelle Nötigung (sexual coercion). Sexuelle Nötigung is

not limited to female victims. 

Both the police statistics and the court statistics give figures separately for Vergewaltigung and sexuelle Nötigung.

Vergewaltigung (StGB 177) is committed when a person

"compels a woman to have extramarital intercourse with

him, or with a third person, by force or the threat of present

danger to life or limb .... ." Sexuelle Nötigung (StGB 178)

is committed when a person "by force or the threat of present danger to life or limb, coerces another to submit to

extramarital sex acts committed by the perpetrator or by a

third person, or to commit extramarital sex acts on the perpetrator or on a third person .... ." Sexual abuse of those

incapable of offering resistance (sexueller Missbrauch Widerstandunfähiger) is covered in section 179.

Statistics: Although there are minor definitional differences in the two systems for such things as rape within the

marriage, taking sexual advantage of persons who are mentally unable to resist, and the like, the German Vergewaltigung data are generally comparable with the American

data for forcible rape. The German data for Vergewaltigung

and sexuelle Nötigung combined are also generally comparable with the American data for forcible sexual crimes. 

The principal problem for this report is that in 1992 the

UCR gives data only for forcible rape and the 1992 BJS

report gives data only for forcible sex crimes combined.

As the new National Incident-Based Reporting System for

the UCR includes data items that allow the separation of

48 German and American Prosecutions
arrests for forcible rape and those for other forcible sex

crimes, it would in theory be possible to estimate the proportion of the BJS complaints that are attributable to forcible sex crimes other than rape. The FBI does not have such

data at this time, however, and no published report was

found that included this kind of breakout. Bureau of Justice

Statistics, Using NIBRS Data to Analyze Violent Crime

(October 1993) contains some data using the new system

but not these data elements. As a consequence, no adjustment has been made in the forcible rape data in this report.

Robbery

United States: The Uniform Crime Reports define robbery

as: "The taking or attempting to take anything of value

from the care, custody, or control of a person or persons by

force or threat of force or violence and/or by putting the

victim in fear."

The 1992 BJS report Felony Defendants in Large Urban

Counties defines robbery as including "the unlawful taking

of anything of value by force or threat of force."

Germany: The German police statistics have a general

Raub category that includes Raub, schwerer Raub, Raub

mit Todesfolge, räuberische Diebstahl, räuberische Erpressung, and räuberische Angriff auf Kraftfahrer (StGB

§§249-252, 255, and 316A). This general category has a

number of subcategories, but these are mostly by type of

victim rather than by code section. Only the räuberische

Angriff auf Kraftfahrer subcategory follows the penal code

definition. 

All of these categories would probably be included within

robbery in the United States except Raub mit Todesfolge

(robbery with death as a consequence). There does not

German and American Prosecutions 49
appear to be any easy way, however, to exclude Raub mit

Todesfolge from the police statistics. As the court statistics

do have separate data for Raub mit Todesfolge, the court

figures were subtracted from the police totals for Raub. As

any police cases of Raub mit Todesfolge that were not

charged or that were charged as some lesser crime would

not be included in the court statistics, the subtraction procedure is probably not a perfect correction. The whole category is small (9 cases in 1992), however, and any errors

should be very small. 

The court statistics have separate categories for Raub

(§249), schwerer Raub (§250), Raub with Todesfolge

(§251), räuberische Diebstahl (§252), Erpressung (§253),

räuberische Erpressung (§255), and räuberische Angriff

auf Kraftfahrer (§316a). The court statistics also have a

general category for Raub. This is similar to the police

Raub category except that it also includes Erpressung

(extortion).

Raub (StGB §249) is committed when a person "by force

or the use of threats of present danger to life or limb, takes

another's moveable property away from him with the intention of unlawfully appropriating it to himself .... ." Overall

Raub appears to be narrower than robbery in the United

States (see Räuberische Diebstahl and Räuberische Erpressung below). In one respect, however, Raub is slightly

broader, as it may be committed against a victim who is

sleeping or passed out.

Schwerer Raub or more severe robbery (StGB §250) is

committed when (1) a firearm is carried, (2) a weapon or

other instrument is used to prevent or overcome resistance,

(3) the offender or an accomplice placed another in danger

of death or severe bodily harm, or (4) the offender acted as

a member of a gang.

50 German and American Prosecutions
Raub mit Todesfolge (StGB §251) is committed when the

offender "in committing the robbery ... recklessly caused

the death of another person .... ." In many U.S. States this

category would be felony murder, and in all it would be

considered in the homicide rather than the robbery

category. 

Räuberische Diebstahl (StGB §252) is committed when

an offender who is "caught in the act of theft, uses force

against a person, or threatens a present danger to life

or limb, in order to retain possession of the stolen property .... ." Although this kind of force was not included in

common law robbery, it is almost universally considered

robbery in the United States today. 

Erpressung (StGB §253) is committed by a person who

"by force or the threat of perpetrating a grievous wrong,

unlawfully compels another to an action, acquiescence or

forbearance which causes detriment to the property of the

victim or another, in order to unlawfully enrich himself or

a third person .... ." This crime is very similar to extortion

in American law and is not included in the comparison.

Räuberische Erpressung (StGB §255) is committed when

the Erpressung is "committed by the use of force against a

person, or by threats of present danger to life or limb .... ."

 At first glance this crime appears to be closer to extortion

than to robbery in American law. Raub is a narrower category in German law, however, than robbery in American

law. Raub requires an actual taking by the offender. If the

property is handed over  even as a result of a loaded pistol held to the victim's head  the crime is räuberische

Erpressung. Most, and perhaps all, cases in the räuberische

Erpressung category would be considered robberies in the

German and American Prosecutions 51
United States. This crime has therefore been included in

the comparison.

Räuberische Angriff auf Kraftfahrer or robbery of a motor

vehicle driver (StGB §316a) is committed by a person who

"for the purpose of committing a robbery ..., a theft followed by violence ..., or extortion accompanied by violence ..., undertakes to physically assault or to restrict the

freedom of decision of the operator or passenger of a motor

vehicle by taking advantage of traffic conditions .... ." Virtually all of this category would be classified as robbery in

the United States. It includes robbery of taxi drivers and

has been included in the comparison.

Aggravated assault

United States: The Uniform Crime Reports define assault

as: "an unlawful attack by one person upon another for the

purpose of inflicting severe or aggravated bodily injury.

This type of assault usually is accompanied by the use of a

weapon or by means likely to produce death or great bodily

harm." The explanation indicates that this category includes assaults or attempts to kill or murder, poisoning,

assault with a dangerous or deadly weapon, maiming, mayhem, assault with explosives, and attempts to commit these

crimes. It is not necessary that injury result when a gun,

knife, or other weapon is used which could and probably

would result in serious personal injury if the crime were

successfully completed.

The 1992 BJS Felony Defendants in Large Urban Counties

definition is: "Includes aggravated assault, aggravated battery, attempted murder, assault with a deadly weapon, felony assault or battery on a law enforcement officer, and

other felony assaults. Does not include extortion, coercion,

or intimidation."

52 German and American Prosecutions
Germany: The German police statistics combine attempted

murder with murder and attempted manslaughter with

manslaughter, but it is possible to break these totals apart.

The German police statistics also contain a category for

Gefährliche Körperverletzung, a crime similar to aggravated assault. Schwere Verletzung is similar to mayhem.

There is also a separate category for poisoning (Vergiftung)

and for participating in a brawl (Beteiligung an einer

Schlägerei).

The police statistics include the following categories: (1)

Körperveletzung mit tödlichem Ausgang  StGB §§226,

227, 229(2); (2) Gefährliche und schwere Körperverletzung (together)  StGB §§223a, 224, 225, 227, 229; (3)

Misshandlung von Schutzbefohlenen (StGB §§223b). A

fourth category (vorsätzliche Körperverletzung) (StGB

§§223) appears to be more like simple assault. 

The police statistical categories (Schlussel) for these crimes

are: 2210  Mit tödlichem Ausgang, 2220 

gefährliche und schwere, 2230  Misshandlung von

Schutzbefohlenen, 2240  vorsätzliche, leicht.

In addition to simple Körperveletzung, the court statistics

have six other categories: (1) Gefährliche, (2) Misshandlung von Schutzbefohlenen, (3) Körperverletzung mit

Todesfolge, (4) Beteiligung an einer Schlägerei, (5) Vergiftung, and (6) Fahrlässige. Categories (1), (4) and (5) are

all included in the police category for Gefährliche und

schwere Körperverletzung.

Gefährliche Körperverletzung or dangerous bodily harm

(StGB §223a) is defined as "bodily harm ... committed

by means of a weapon, in particular a knife or other dangerous instrumentality, or by means of a sneak attack, or

German and American Prosecutions 53
by several people acting in concert, or by a life endangering act .... ."

Schwere Körperverletzung or severe bodily harm (StGB

§224) is defined as "bodily harm committed on the victim

[which] results in loss of an important part of his body,

sight in one or both eyes, hearing, speech or his procreative

capacity, or in a serious permanent deformity, or deteriorates into invalidity, paralysis or mental illness ... ." This

crime is similar to mayhem under American law. It is included in the comparison.

Körperveletzung mit tödlichem Ausgang or bodily harm

followed by death (StGB §226) is committed when "the

bodily harm causes the death of the victim .... ." This crime

would generally be considered murder or manslaughter under American law.

Misshandlung von Schutzbefohlenen or abuse of those in a

dependent position (StGB §223b) is committed when a

person "torments or brutally mistreats persons less than

eighteen years of age, or persons who are defenseless because of infirmity or illness, and who are under his protection or care, or belong to his household, or who have been

placed under his authority by the person charged with their

welfare, or are dependent on him by virtue of a work or

employment relationship; or ... impairs their health by maliciously neglecting his duty to care for them .... ." Three

fourths of the crimes in this category would probably be

classified as some form of child abuse in the United States.

A portion of the remainder would probably be classified as

aggravated assault and a portion as some form of elder

abuse. Because this category is both small and the classifications involved are uncertain under U.S. law, it has been

omitted from the comparison.

54 German and American Prosecutions
Beteiligung an einer Schlägerei or participation in a brawl

(StGB §227) is committed when "as a result of a brawl or

an attack perpetrated by several people, death is caused, or

aggravated bodily harm (§224) is committed .... ." Although this category can include homicides, there is no

way to separate the homicides from the assaults in the statistics. In this report the offenses in this category are classified as aggravated assaults.

Vorsätzliche Körperverletzung or bodily harm (StGB

§223) is committed when a person "physically abuses another, or causes impairment to his health .... ." This crime

is more like simple assault in American law and is not included in the comparison.

Jurisdictions within the United States vary enormously in

the extent and the manner of determining whether a particular assault is "aggravated" or not. There is reason to

believe that similar locality-to-locality variation occurs in

Germany. 

Burglary

United States: The Uniform Crime Reports define burglary

as: "The unlawful entry of a structure to commit a felony or

a theft. Attempted forcible entry is included."

The 1992 BJS report on Felony Defendants in Large Urban Counties defines burglary as including "any type of

entry into a residence, industry, or business with or without

the use of force with the intent to commit a felony or theft,

such as forcible entry and breaking and entering." The classification "does not include possession of burglary tools,

trespassing, or unlawful entry for which the intent is not

known."

German and American Prosecutions 55
Germany: German law has no separate burglary category.

What is burglary in the United States is basically an aggravated form of theft (Diebstahl) in Germany. The published

German police statistics also have no separate burglary

category. The German police statistics do, however, separate theft into ordinary theft (Diebstahl) and aggravated

theft (schwere Diebstahl). The German police statistics

also include very detailed breakouts describing the circumstances of the theft. Using these breakouts, German researchers have been able to create a category that closely

approximates burglary (Einbruchdiebstahl). The police statistical (Schlussel) categories used by German researchers

for this purpose are Schlussel numbers 4100-4450 and

4600. See, for example, Steffen (1982), vol. III, p. 13. 

The specific categories included are 

 (410*) service rooms, offices, factories, workshops, and

storerooms 

 (415*) restaurants, canteens, hotels and pensions

 (420*) kiosks

 (425*) warehouses, sales rooms, self service stores

 (430*) store windows, show cases, glass cabinets

 (4350) dwellings

 (440*) basements

 (445*) new, largely unoccupied structures

 (4600) churches

These same Schlussel categories were used to create the

Einbruchdiebstahl category in Steffen (1976) and in Blankenburg and others (1978). (Interview with Dr. Steffen.)

Schwere Diebstahl (StGB §243) is the German crime of

aggravated theft. This crime is defined as theft plus the

presence of one or more aggravating factors. One of the

aggravating factors is that "in committing the crime," the

56 German and American Prosecutions
offender "breaks or climbs into a building, dwelling house,

work or business space, or any other enclosed area, or obtains entry into any of the above with a skeleton key or by

any other implement not regularly used to gain entry, or

conceals himself in the place."

Using this definition, the German court statistics (Strafverfolgung) include an Einbruchdiebstahl category. Because it

requires that the theft actually be completed and because it

is limited to crimes involving theft, this aggravating factor

is narrower than burglary in American law. The burglaryEinbruchdiebstahl comparison is nonetheless included in

this report. Since both the German and the American statistics include attempts, the definitional differences are not as

great as they might appear.

Motor vehicle theft

United States: The Uniform Crime Reports define motor

vehicle theft as "The theft or attempted theft of a motor vehicle. A motor vehicle is self-propelled and runs on the surface and not on rails. Specifically excluded are motorboats,

construction equipment, airplanes, and farming equipment." Included are automobiles, trucks, buses, motorcycles, motorscooters and snowmobiles. The definition

excludes the taking of a motor vehicle for temporary use by

those persons having lawful access.

The 1992 BJS report on Felony Defendants in Large Urban Counties lumps motor vehicle theft with other felony

theft. It is not possible to make a separation.

Germany: There are no legally separate categories for motor vehicle theft [although there is a separate category for

unauthorized use (StGB §248b)]. Motor vehicle theft is not

a felony. Although as a practical matter high monetary loss

often results in increased punishment, it does not alone

German and American Prosecutions 57
suffice to make the crime automatically into an aggravated

theft. 

The police statistics include categories for both ordinary

and aggravated theft of (1) motor vehicles including unauthorized use (Von Kraftwagen einschl. unbefugte ingebrauchnahme) and (2) mopeds and motorbikes (Mopeds,

Krafträdern). The Schlussel numbers for von Kfz are 3001,

4001, 3002, 4002. See Steffen (1976, 1982). It is possible

therefore to identify the number of persons suspected Tatverdächtige for motor vehicle theft. 

The court statistics have no such categories. There is only a

general theft (Diebstahl) category and an other (Sonstiger)

category for aggravated theft, (schwerer Diebstahl). Some

data are available from special studies, but these are

limited.

Other serious theft

United States: The Uniform Crime Reports define "theft"

as "the unlawful taking, carrying, leading, or riding away

of property from the possession or constructive possession

of another. Examples are thefts of bicycles or automobile

accessories, shoplifting, pocket-picking, or the stealing of

any property or article which is not taken by force and violence or by fraud. Attempted larcenies are included. Embezzlement, 'con' games, forgery, and worthless checks. are

excluded." This category obviously includes both felonies

and misdemeanors.

The 1992 BJS report Felony Defendants in Large Urban

Counties defines "theft" as including "grand theft, grand

larceny, motor vehicle theft, and any other felony theft."

The category does not include "receiving or buying stolen

property, fraud, forgery, or deceit."

58 German and American Prosecutions
Germany: Both the German police statistics and the court

statistics have a category for aggravated theft (schwerer

Diebstahl). This category includes both burglary and some

motor vehicle theft. In fact burglary (Einbruchdiebstahl)

makes up about half this category and motor vehicle theft

another 25-30%. As explained above, it is possible to separate the figures for burglary in both the police and the court

statistics and for the motor vehicle cases in the police statistics. It is not possible, however, to separate the figures

for motor vehicle theft in the court statistics. Schwerer

Diebstahl is not a felony (Verbrechen) and the factors that

aggravate theft in German law are considerably different

from those that aggravate theft in U.S. law. Fraud and embezzlement (Betrug and Unterschlagung) are separate categories in Germany and are not included in schwerer

Diebstahl. Credit card theft and the like are also not included in schwerer Diebstahl.

Schwerer Diebstahl (StGB §243) defines the aggravating

factors for theft. These exist when someone 

 commits a crime similar to burglary  see earlier

discussion

 steals something which is specially secured against removal by being kept in a closed container or other protective device

 steals as a business

 steals something which is used for religious services or

veneration from a church or from any other building or

place used for religious observance

 steals something of importance for science, art, history or

technological progress which is located in a collection open

to the public or publicly exhibited

German and American Prosecutions 59
 steals by taking advantage of the helplessness of another,

or of an opportunity stemming from a disaster or common

danger.

Aggravated theft does not exist if "the value of the property

involved in the offense is minimal." 

Statistics: Although the Uniform Crime Reports do not

divide theft into felonies and misdemeanors, it is possible

to make some estimate of the more severe thefts on the basis of the tables given. Table 7, p. 107 (1992) shows the

distribution by value of the theft, indicating that 36% of all

larcenies reported are over $200. Since most States make

theft over a certain amount (often when over $200) into

felony theft, the comparison uses an estimate based on the

proportion given in table 7. Since thefts from the person

and various other kinds of theft are considered felonies

irrespective of the amount taken, this estimate clearly understates the amount of serious theft in the United States.

Because motor vehicle thefts are included in the BJS figures for "theft," they are included in the U.S. arrests and

referrals in the appropriate tables, including tables 12 and

20.

The German figures used in the comparison are those for

aggravated theft minus the figures for burglary. Because

the principles used by German law to distinguish ordinary

theft from aggravated theft differ considerably from the

aggravating factors used in the United States, the comparison for serious theft is not a comparison of like categories.

Even though the types of theft involved differ, however,

the comparison nonetheless indicates how the two systems

deal with what each regards as the more serious thefts.

Drug offenses

60 German and American Prosecutions
United States: The Uniform Crime Reports contain no

crimes reported to the police for drugs. It reports drug

crimes only as arrests. Included in its arrest data are arrests

for narcotics, marijuana, synthetic narcotics, and dangerous

non-narcotics (barbiturates, benzedrine). In most arrest tables these categories are all lumped together. Table 4.1, p.

216 (1992), gives a breakout showing the percentage of all

drug arrests attributable to each type of drug and each type

of activity by the arrestee:

Sale/

Manufacture Possession Total

Heroin 20.6 32.4 53.0 

Marijuana 6.6 25.5 32.1

Synthetic or

manufactured 0.7 1.2 1.9

Other dangerous 3.9 9.2 13.1

The UCR arrest totals include both felony and misdemeanor arrests. As the UCR totals do not include Federal

arrests or charges, consideration was given to adding these

to the UCR totals. Ultimately, however, they were not included. See Appendix C, Methodology.

The 1992 BJS report Felony Defendants in Large Urban

Counties includes two separate drug categories: "drug

sales/trafficking" and "other drug offenses." "Drug

sales/trafficking" includes "trafficking, sales, distribution,

possession with intent to distribute or sell, manufacturing,

and smuggling of controlled substances." This category

does not include possession of controlled substances.

"Other drug offenses" includes "possession of controlled

substances, prescription violations, possession of drug

paraphernalia, and other drug law violations."

German and American Prosecutions 61
Germany: The police statistics have a total for drug offenses. They also have separate breakouts for heroin and

for cocaine. Marijuana (Cannabis) is also a separate category although this is lumped together with "preparation"

(Zubereitungen). There is also an "other" (Sonstige)

category.

The court statistics use a different set of categories. These

are: (1) illegal delivery and manufacture (unerlaubtes

Abgaben, Herstellen von Handeltreiben); (2) professional

sale (gewerbsmassige Abgabe); (3) with death as a consequence (mit Todesfolge); (4) importing in not small

amounts (Einfuhr in nicht geringer Menge); (5) other professional acts (andere gewerbsmassig begangene); (6) endangering the health of several people (Gefahrdung der

Gesundheit mehrer Menschen); (7) passing through adults

to juveniles (Abgabe durch Erwachsene an Jugendliche);

(8) dealing, possession, or passing in not small amounts

(Handel mit, Besitz, oder Abgabe in nicht geringer menge);

(9) other intentional (andere vorsätzliche); and (10) negligent (Fahrlässige). These categories are geared to the German drug law (Betäubungsmittel Gesetz), a law that is

separate from the penal code.

In addition to the court statistics, there is a separate set of

drug statistics, Betäubung. The subcategories in these statistics also track the drug statute, making divisions primarily between handlers and possessors. 

Statistics: It is impractical in both countries to track the

prosecutorial handling of drug offenses by drug type (heroin, cocaine, and so forth). It is also impractical to track by

type of handler (dealer, possessor, and so on). The comparison therefore uses only the overall category of drug offenses. Because the German law does not have the same

distinction between felony and misdemeanor as the U.S.

62 German and American Prosecutions
law, the comparison uses all drug offenses in both countries. This means that the U.S. figures include both felonies

and misdemeanors. 

Arson

United States: The Uniform Crime Reports define arson

as: "Any willful or malicious burning or attempt to burn,

with or without intent to defraud, a dwelling house, public

building, motor vehicle or aircraft, personal property of

another, and so forth."

The 1992 BJS report Felony Defendants in Large Urban

Counties lumps arson into "other property crimes." Separating arson from the "other property crimes" would require

total reassembling of a complicated data set. 

Germany: The police statistics include two categories of

Brandstiftung, the German counterpart of arson. These are:

(1) intentional (vorsätzliche) and (2) negligent

(fahrlässige).

The court statistics use the same two categories: (1) vorsätzliche (StGB §§306-308) and (2) fahrlässige (StGB

§309). 

Brandstiftung (StGB §308) is committed by one "who sets

fire to buildings, ships, cabins, mines, depots, stockpiles of

goods which are being kept in designated public places,

supplies of agricultural products or of construction material

or fuel, crops in the field, forests or peat bogs, if these objects belong either to someone else or, in case they belong

to the offender, are likely, because of their nature and location, to spread the fire to one of the places mentioned in §

306 numbers 1 to 3, or to one of the things belonging to

another which are mentioned above .... ."

German and American Prosecutions 63
Schwere Brandstiftung (StGB §306) is an aggravated form

of arson that involves "setting fire to a building used for

religious observances; a building, a ship or a cabin serving

as a place of human habitation; or a space which is sometimes used as a place for a visit."

Besonders schwere Brandstiftung (StGB §307) is an even

more serious form of arson in which "the fire caused the

death of a person who was present at the time of the offense in one of the spaces which was set on fire," or if "the

offender acted with the intention of using the arson to commit murder, robbery, theft followed by violence, or extortion accompanied with violence," or if the "offender in

order to prevent or impede efforts to put out the fire, removed or rendered inoperative fire-fighting equipment."

Fahrlässige Brandstiftung is committed when a person

"negligently causes a fire of the type described in §§ 306

and 308 .... ." 

Statistics: Because the BJS statistics do not include any

separate figures for arson, it is not feasible to make a full

comparison for the crime of arson. Some limited comparisons are attempted nonetheless.

Both the German police and the German court statistics

include a separate category for creating a risk of burning.

As this category is not considered to be Brandstiftung in

Germany and would not be arson in the United States, it

is not included in the comparison. 

Because the U.S. definition of arson typically does not include negligent burning (fahrlässige Brandstiftung), this

category has also been omitted from the comparison. 

64 German and American Prosecutions
Appendix B

Finding a common starting point 

for statistical comparison

It is widely acknowledged both in the United States and on

the continent that the decision to begin a prosecution is one

of the most important in the criminal justice system. There

is an enormous difference, however, in the way that the

United States and continental countries such as Germany

approach this problem.

The historical antecedents of the differences between the

accusatorial English system and the inquisitorial continental system are well known (for instance, Langbein 1974).

There is also a substantial literature comparing various aspects of the two criminal justice systems today (for example, Damaska 1986). English language works discussing

German prosecutors generally focus on the German concept of obligatory prosecution ("legality principle"), a principle that contrasts sharply with the American emphasis on

prosecutorial discretion (described by the Germans as the

"opportunity principle").

A few very sophisticated works get beyond these quite abstract comparisons. They acknowledge the importance of

the broad doctrinal differences but correctly find that they

are not the whole story. They point out that German criminal justice, like most systems of criminal justice, must deal

with problems such as scarcity of resources and the unavailability of evidence, and that this necessarily blurs the

legality principle (Herrmann 1974).

While the best of the prior literature points the way to a

general understanding of how the two systems compare,

even it leaves many basic questions unanswered. If the

highly profitable two-way interchange between the

German and American Prosecutions 65
common law and the European worlds that has taken place

in the past is to continue, the comparisons must become

much more precise. Through the development of a better

method for comparing German and American prosecutorial

statistics, this report seeks to advance this goal.

There have been a number of previous attempts to compare

German and American prosecutorial statistics. At the national level the most important attempt to compare German

and American prosecutorial statistics was a 1987 publication by the Bureau of Justice Statistics entitled Imprisonment in Four Countries. Although the principal focus of

this report was imprisonment rather than prosecution, the

comparisons attempted required a comparison of prosecutorial statistics for the two countries.

A major problem encountered by this report (and by other

efforts to compare prosecution in the two countries) is that

criminal cases in Germany generally do not begin with an

arrest as in the United States. It is not possible therefore to

make direct comparisons between the German prosecution

data and the best American prosecution data, because the

best American prosecution data come from transaction statistics that are arrest based.

The BJS project recognized the problem and sought to

solve it by giving calculations for two different kinds of

German data. The first was data about Tatverdächtige, that

is, persons suspected by the police. The second was data

about Anklage, a term translated in the report as "persons

actually charged in an official proceeding." The methodological appendix for the 1987 BJS imprisonment study indicated that the Tatverdächtige figure was looser than the

66 German and American Prosecutions
arrest figure in the United States and that the Anklage figure was tighter.12

A. Tatverdächtige and arrestees: How similar?

This report seeks to identify a single, common starting

point for comparisons of prosecutorial activity in the

United States and Germany. It concludes that for serious

crimes the most appropriate comparison is between cases

transmitted by the German police to the German prosecutor

as suspects worthy of prosecution (Tatverdächtige) and

cases arrested in the United States.13

In both Germany and the United States most criminal investigations are conducted by the police and most prosecutions begin when the police give the prosecutor information indicating that they suspect a named individual of

committing a particular offense. In the United States,

when the crime involved is a serious one, the police usually

arrest the individual involved before they transmit their information to the prosecutor. Arrest often facilitates the investigation, making it easier to question the defendant, to

collect fingerprints, to place the suspect in a lineup, and in

many instances assisting with other investigative steps such

as searches and seizures.

Of course there are rules about whom the police may and

may not arrest. They may not arrest an individual just because they suspect that person of committing a crime. In

the United States, the police must be able to establish that

there is a reasonable probability that a crime was committed and that the person they have identified is the culprit.

This proof requirement called "probable cause," is less than

the proof required to convict in criminal cases ("beyond a

reasonable doubt"). It is more, however, than a "mere

German and American Prosecutions 67
suspicion" or even the "reasonable suspicion" required for

the police to stop a suspect on the street.

Under German law police may not take a suspect into custody simply because the suspect is strongly believed to

have committed a crime. Police are authorized to take a

suspect into custody without a court order (vorläufige Festnahme) only if they cannot identify the suspect, there is a

risk of flight, or there is no time to get a court order.14 As a

practical matter (and presumably as a result of the law), the

German police take a much smaller percentage of suspects

of serious crimes into custody than do their U.S. counterparts. Thus it is not possible to use the taking of a suspect

into custody as a beginning point for comparisons between

the American and the German system of prosecution.15

There are indications that German police officers often "invite" suspects to the police station at the beginning of a

case and that suspects routinely comply with these invitations on a "voluntary" basis. If this practice were widespread enough, it could amount to an informal counterpart

of the American arrest system. Although there is little research about this practice, many German experts believe

that there is no uniform informal practice. Even if such a

practice did exist, the activity is not recorded, and it could

therefore not provide a basis for international comparisons.

In the United States there is considerable variation in the

way the police transmit information about a serious criminal case to the prosecutor. In many jurisdictions the arresting officer or a police detective talks personally with a

68 German and American Prosecutions

12Methodological Appendix (unpublished), p. 5.

13Operationally there are obviously significant differences between Tatverdächtige and arrestees. Arrestees are by definition

persons who have been taken into custody, while this is not a

requirement for Tatverdächtige.
prosecutor about the case, generally giving the prosecutor

both an oral and a written report about it. In other jurisdictions the police simply give the prosecutor a file. In a

smaller number of jurisdictions the police file the charges

themselves and then turn reports over to the prosecutor.

Although there is undoubtedly variation in Germany as

well, the process is more standardized. The police compile

a case file (called an Akte) and transmit this to the prosecutor. The case file typically contains much more information

than its U.S. counterpart.

In the United States the prosecutor has no legal responsibility for the investigation, and no supervisory powers over

the police. Although the prosecutor has the legal authority

to investigate if he or she chooses to do so, there is no legal

requirement that the prosecutor do so, and as a practical

matter the prosecutor's office rarely investigates a case

wholly on its own. Prosecutors frequently seek more information about cases on which they have filed charges, but

German and American Prosecutions 69

14Criminal Procedure Code (StPO) § 127.

15The German term vorläufige Festnahme, "temporary detention," corresponds fairly closely in terms of custodial status to

"arrest" as that term is used in American law. The German term

Untersuchungshaft means a detention ordered by the court for

the purpose of investigation. There is no exact U.S. counterpart.

In practice the term is closer to detention under an arrest warrant

or pending bail than to arrest. Vorläufige Festnahme is much

more restricted than arrest in the United States, and is not a suitable starting point for comparisons. This is perhaps fortunate as

there are no on-going German criminal statistics concerning vorläufige Festnahme. There are on-going German statistics concerning Untersuchungshaft, but as indicated above these

correspond more closely with bail statistics in the United States

than with arrest statistics
generally do not investigate ordinary crimes, even serious

ordinary crimes, themselves. Both in theory and in fact, the

American prosecutor has great discretion  not only about

whether to investigate but also about whether and how to

file charges. 

The German law is different. Legally the German prosecutor is in charge of the investigation, and obligated both to

investigate and prosecute the case. The police are legally

subordinate to the prosecutor, at least in their criminal investigation functions. Because of the "legality" principle,

neither the prosecutor nor the police have any discretion in

carrying out these functions.

As a consequence of this legal situation, the German police

submit reports to the prosecutor not only on persons suspected of committing crimes but also on cases for which

they have no suspects.

Probable cause: One concern about the hypothesis that

Tatverdächtige are the equivalent for statistical purposes

of arrestees in serious criminal cases is whether the quantum of probable cause required to categorize a suspect as

a Tatverdächtige in Germany is less than that required for

arrest in the United States.16

The "probable cause" required for arrest in the United

States cannot be easily quantified or defined. It is clear

that probable cause requires more proof than reasonable

suspicion and less than proof beyond a reasonable doubt.

Some older authorities suggest that it normally requires a

preponderance of the evidence, but the U.S. Supreme Court

has not endorsed this standard and its most recent pronouncements speaks only of a "fair probability" of guilt

[(Illinois v. Gates (1983); LaFave and Israel (1992)].

70 German and American Prosecutions
When German police identify a particular individual as the

person who committed a crime, they "clear" the crime and

classify the person identified as a Tatverdächtige. They

then submit a report to the prosecutor about the case indicating that this person is suspected of committing the

crime. German law does not seek to regulate reports sent

from the police to the prosecutor. There is thus no legal

requirement that the German police establish the equivalent

of "probable cause" before transmitting information about

that individual to the prosecutor. No law would therefore

be violated if the police identified persons as suspects even

if the level of proof available was extremely low. As a

practical matter, however, there would be little advantage

to the police for such a course of action. The police not

only are very conscious of the limits of their own resources, but also they know that the prosecutor will file

charges only on those cases where there is sufficient proof.

For statistical purposes Tatverdächtiger is defined as "one

who is suspected with sufficient cause, on the basis of the

police investigation, of committing a crime." (Italics

added.)17 A review of the German literature, discussions

with German police, prosecutorial, and statistical officials,

and the personal observations of the author suggest that 

German and American Prosecutions 71

16The Methodological Appendix to Imprisonment in Four Countries (Bureau of Justice Statistics, 1987), NCJ-168951, p. 5, indicates that the standard of probable cause required to make

someone a suspect [in Germany] is considerably less than that

necessary for arrest."
this standard in practice is roughly the equivalent of the

American probable cause standard.18

Clearances: One method for comparing arrests and Tatverdächtige is to examine the similarity of the relationship

between police clearances and arrest in the United States

with that between police clearances and Tatverdächtige in

Germany. 

In the United States the instructions for the Uniform Crime

Reports indicate that the police may "clear" a crime whenever an offender is arrested, charged with commission of

the offense, and turned over to the court for prosecution.

Even if such a clearance is not possible, crimes may nonetheless be cleared "exceptionally" if the investigation has

definitely established the identity of the offender and there

is enough information to support an arrest, charge, and

turning over to the court for prosecution.19

In Germany police clearances (aufgeklart) and Taverdächtige are identical. When the police clear up a crime,

72 German and American Prosecutions

17The police term for sufficient cause for suspicion is hinreichend Tatverdächt. 
they automatically categorize the person identified as a

"Tatverdächtige."20

The German instructions indicate: "A case which has been

cleared up is an offense for which, in the course of the police investigations, either a suspect known at least by name

was traced or a suspect was caught in the act."21

Although the German police formally have no "exceptional" clearance category, they are allowed to "clear" a

case even if the offender identified is underage, deceased,

or insane. The exact number of clearances of this type is

not known, as no distinction is made in the type of clearance reported. The limited data available in ad hoc studies

suggest that such cases are few, and not greatly different

from the number of exceptional clearances in the U.S.22

The limited information available suggests that 90% or

more of the Tatverdächtige are cases that would be arrests

in the United States. The remainder are cases in which the

suspect is out of the country, has died, or is otherwise not

available for processing. There is no easy way, however, to

remove these non-arrest cases from the German statistics.

(See section C.)

German and American Prosecutions 73

18A letter from Hans-Jörg Albrecht, Max Planck Institute for

Foreign and International Criminal Law, to Steven R. Schlesinger, Director, Bureau of Justice States, U.S. Department of

Justice, January 8, 1987, concerning the Methodological Appendix to Imprisonment in Four Countries (Bureau of Justice Statistics, 1987) addresses the legal requirements for arrest in

Germany but does not appear to discuss the practical question as

to whether German Tatverdächtige are similar to U.S. arrestees.

19Federal Bureau of Investigation, Uniform Crime Reporting

Handbook (Washington, D.C.: 1984), p. 42.
The fact that German clearance rates are substantially

higher than U.S. clearance rates for the same offense could

be interpreted as evidence that Germany requires a lower

standard of proof for clearance and thus a lower standard of

proof for referral to prosecution. The examples of cleared

cases in the German legal and empirical literature, however, suggest no systematic difference in German and U.S.

standards. A better explanation for the higher German

clearance rates is the lower level of crime in Germany.

When the U.S. crime rate was more like that in Germany

today (in the late 1950s and early 1960s), the U.S. clearance rates were similar to those in Germany today.

Empirical studies: There are many American cases and

studies that help to flesh out the meaning of "probable

cause" to arrest. LaFave and Israel (1992) summarize the

case law. An earlier study by LaFave (1965) gives an enormous number of short factual summaries of arrests in

which probable cause is present. Feeney, Dill, and Weir

(1983) attempt to quantify the evidentiary factors that correlate with arrests, prosecutorial charges, and convictions. 

74 German and American Prosecutions

20Interview with Reinfried Pailer, Statistischen Landesamt

Baden-Württemberg (the office responsible for technical supervision of the Strafverfolgung throughout Germany); interview

with Professor Wolfgang Heinz, University of Constance, a

leading authority on German criminal statistics.

21Polizeiliche Kriminalstatistik 1992, p. 231.

22No distinction is made in clearances reported to the Federal

Bureau of Investigation between normal and exceptional clearances. The examples given in the Uniform Crime Reporting

Handbook, p. 42, of permissible "exceptional" clearances are

similar to the instances when a German clearance would not be

an arrest in the U.S. system.
The most relevant German study is a 1987 analysis conducted by Professor Dieter Dölling for the Bundeskriminalamt, the German equivalent of the FBI. This study

examined in great detail the case records for over 1,400

cases of burglary, robbery, forcible rape, and fraud. The

study drew its data from three different cities located in

two different states. Roughly half the cases for each of the

four crime types studied were solved cases and the other

half unsolved cases. Some 793 items of information, covering every aspect of the crime, the offender, the history of

the case, and the circumstances leading to apprehension,

were coded for each of the 1,400 cases.

The purpose of the Dölling study was to examine both the

legal and practical feasibility of using "solvability scales"

to assist the German police in separating those cases warranting careful investigation from those that do not. Such

scales are widely used by the police in the United States,

but because of the obligatory prosecution principle were

not being used in Germany at the time of the Dölling

study. The items of information included in the study were

examined in both tabular and multivariate analyses. Among

the multivariate analyses performed was a discriminant

analysis for each crime type. This analysis sought to identify the factors most predictive of clearance, charging, and

convic- tion.

Because the information items coded by Dölling were not

identical with those in American studies of the same type,

it is not possible to make exact comparisons. It is possible

to say, however, that the factors that predict clearance in

Germany appear to be similar to those that predict clearance or arrest in the United States. There is also considerable similarity in the factors that predict charge and

conviction. These similarities suggest that the standards

are similar.

German and American Prosecutions 75
B. Anklage data as an alternate starting point

Because of concerns about the comparability of the Tatverdächtige data, the 1987 BJS imprisonment study used

data about cases in which German prosecutors had filed

charges (Anklage) as an alternate starting point for its comparisons. As indicated above, the present report takes the

position that Tatverdächtige and arrest data are comparable

and that there is therefore no need for an alternate starting

point.

If there were a need for an alternate starting point, using

Anklage data would certainly be one approach that should

be considered. An Anklage in German law has some similarity to a initial prosecutorial charge in American law. The

term omits, however, a large category of minor misdemeanors which the German prosecutor can discretionarily

decline to prosecute.23

A more serious problem is that the Strafverfolgung, the

German court statistics series from which the 1987 BJS

imprisonment study drew its data, is not a good source for

data about Anklage. The term actually used in the Strafverfolgung is Abgeurteilte. This term is defined as follows:

Abgeurteilte are Angeklagte, against whom penal orders

have been issued or in which after the opening of the chief

proceeding, there has been a final decision to dismiss or

convict. The number includes those convicted and those in

which there was some other decision. Where the decision

concerns a person charged with more than one offense, the

count includes only the offense with the greatest penalty.

When the same person is charged in more than one proceeding, a separate count is made for each separate

proceeding.24

76 German and American Prosecutions
As this definition indicates, Abgeurteilte includes all persons charged (all Angeklagte). Unfortunately, however, Abgeurteilte data cannot be used to obtain accurate Anklage

data for specific offenses. Discussions with the German

officials responsible for the Strafverfolgung and other experts indicate that the Abgeurteilte for a specific offense

(such as robbery) include all those persons convicted of

that offense plus all those charged with that offense whose

cases are dismissed after the chief proceeding has begun.

The Abgeurteilte for a specific offense do not include,

however, those persons for whom the judge has found insufficient evidence to justify going into the full trial. Overall, the term corresponds more closely to "informations" or

 "indictments" in the U.S. system than to cases charged.25

The Abgeurteilte statistics also do not include either those

persons charged with a lesser offense or those convicted of

a lesser offense. The research available indicates that both

of these are large categories. The Abgeurteilte data can be

used to develop a minimum figure for cases charged for a

specific offense, but cannot be used to produce an accurate

overall figure. 

C. Should the Tatverdächtige statistics be adjusted?

Because the German prosecutor is technically responsible

for all investigations, all cases are referred to the prosecutor

whether a suspect has been identified or not. Cases in

which a suspect has not been identified are not considered

to be Tatverdächtige. All cases in which an individual has

been identified by name are, however, considered to be

German and American Prosecutions 77

23German Criminal Procedure Code (StPO) section 153.

24Strafverfolgung 1993, p. 6.
Tatverdächtige. The figures therefore include minors below

the age of majority, absent defendants, suicides, and

deaths. Defendants also sometimes die or become absent at

a later time. This section discusses the need for and feasibility of adjusting the Tatverdächtige figures to make them

more comparable with the American arrest figures.

Defendants below the age of competency (age 14): 

Minors below the age of competency are included in the

police Tatverdächtige statistics but not in the court statistics (Strafverfolgung). As this report concerns only adult

cases, there is no problem about minors below the age of

competency. They are not included in the data for either

country. 

Absent defendants: Persons who have already fled at the

time of referral by the police and persons who flee during

processing by the prosecutor are not included in the German court statistics unless the prosecutor files a complaint

(Anklage). If the prosecutor files a complaint, three things

can happen: (1) the defendant can be tried in absentia; (2)

the prosecutor can simply wait for the defendant to appear;

or (3) the prosecutor can terminate the case (Einstellung).

Options (1) and (3) go into the court statistics. Option (2)

goes into the court statistics only when the prosecutor takes

some final action.

Absent suspects do present some problems for the comparison. A suspect whose identity is known but whose whereabouts are not known cannot be arrested and is generally

78 German and American Prosecutions

25Before a full trial proceeding can be instituted, a German judge

must formally decide to "open" the trial proceeding. This requires the judge to determine that there is enough probable cause

to warrant a trial on the charge. The function of this determination is thus roughly the same as the preliminary hearing or the

grand jury proceeding in the United States.
not included in the U.S. arrest statistics. In Germany, however, such a suspect will be included in the Tatverdächtige statistics.

Once a suspect has gone to court, the American and German statistical systems operate more similarly. Many U.S.

suspects who are arrested are released on bail or some other

form of pretrial release. A small percentage of those released will seek to flee rather than appear in court. As reported in Felony Defendants in Large Urban Counties,

1992, 63% of the persons charged with felony crimes were

given pretrial release at some time and 51% of those released had at least one failure to appear in court. Eight percent remained fugitive at the end of the data collection

period. These cases appear in the BJS statistics as charged

cases. 

In Germany most suspects are either not arrested or held

for a very short time. A small percentage of these suspects

will seek to flee rather than appear in court. If charges have

been filed against the suspect, they will be counted in the

court statistics.

Deaths: Suspects who die also present some problems for

the comparison. In the U.S. suspects who die before being

arrested are never arrested or charged and do not appear in

the statistics. In Germany, however, suspects who die before having been referred to the prosecution by the police

are referred nonetheless. They are therefore included in the

Tatverdächtige statistics.

Persons who are dead at the time of referral by the police

or who die before an Anklage is filed are not included in

the court statistics (Strafverfolgung). Persons who die after

an Anklage is filed may or may not be included. If the case

is dismissed (eingestellt) after the person dies, it will in

German and American Prosecutions 79
theory be included in the court statistics. German statistical

experts indicate, however, that it is possible that these

cases never come into the statistics (because counts are

made only after a case is completed).

80 German and American Prosecutions
Appendix C

Methodology

Basic approach

There are no regular national prosecutorial statistics in

either the United States or Germany that can be used as

a basis for comparison. Germany does have national prosecution statistics (Staatsanwaltschaften). These statistics

contain no offense data, however, and are not suitable for

sophisticated comparisons. 

The basic approach for this report was to combine the

available police and court statistics in each country and to

use these combined figures as the basis of comparison.

The first requirement for the comparison was to find a year

for which suitable statistics were available in both countries. The year 1992 was chosen because that was the latest

year for which extensive U.S. prosecutorial and court statistics were available.

Police data for the United States were taken from the FBI

publication Crime in the United States, 1992. Prosecutorial

and court statistics were taken from the data used in the

BJS publication Felony Defendants in Large Urban Counties, 1992. This data base included cases filed in 1992 and

disposed of in 1992 and 1993.

Police data for Germany were taken from Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992. Prosecutorial

and court statistics were taken from Statistisches Bundesamt, Strafverfolgung 1993. Because the German court statistics for 1993 did not yet include the former East

Germany, the Bundeskriminalamt made available police

data for the former West Germany plus all of Berlin.

German and American Prosecutions 81
Estimating arrests

United States

Adult arrests were taken from Crime in the United States,

1992, table 41. These were multiplied by 1.2 to adjust the

factor necessary to increase the population covered in the

table to the 1992 national total.

As the German statistics are national totals rather than the

sum of the totals of the individual states, consideration was

given to adding Federal arrests or Federal cases filed to the

U.S. totals. There are no statistics covering Federal arrests.

Available data indicate, however, that U.S. attorneys disposed of 30,547 drug suspects and filed 15,596 drug

charges in Federal court in 1992, about 3% of all U.S. drug

arrests and 4% of all U.S. drug charges. Because the Federal statistics are so different from the State statistics, these

figures were not added to the tables. The percentage of

Federal crimes for other offenses is much smaller than that

for drugs, and data for other Federal crimes were also not

included in the comparison. BJS, Sourcebook of Criminal

Justice Statistics  1992, p. 477.

Germany

Adult cases referred by the police to the prosecution were

taken from Bundeskriminalamt, Polizeiliche Kriminalstatistik, 1992, table 20 (unpublished data for the former

West Germany and the whole of Berlin  population

65,765,900). These data do not include the remainder of

the former East Germany. The 1992 population for all of

Germany was 80,274,564.

82 German and American Prosecutions
Estimating cases charged

United States

The number of U.S. cases charged is based on the data

used for Felony Defendants in Large Urban Counties,

1992. This data base includes all the felony filings for 1

month in a group of large counties. This group of counties

was selected and weighted to represent jurisdictions containing 37% of population and 50% of the crimes.

The total number of U.S. cases charged was estimated by

multiplying the BJS study totals for each offense by 12 to

get a yearly total and by 2 to get a U.S. total.

There are obvious problems in estimating a total figure for

cases charged in the United States on the basis of what

happens in large urban counties. The method used appeared

superior, however, to any of the other procedures that

might have been used.

In order to estimate the extent of bias in this method, an

analysis was made of the charging and conviction rates of

the 58 California counties using data contained in the California Department of Justice, California Criminal Justice

Profile 1992 (1993), table 28. The 58 counties were divided into 5 large, 10 medium-sized counties, and 43 small

counties. The five large counties accounted for 58%, the

medium-sized counties 23%, and the small counties 19%

of the felony dispositions. The median charging rates were

as follows: large counties (81.2%), medium (88.4%), and

small (95.8%). The median conviction rates were: large

counties (70.5%), medium (71.1%), and small (75.0%).

These figures compare with a statewide charging rate of

84.4% and a statewide conviction rate of 70.2%.

German and American Prosecutions 83
This analysis suggests that there is very little bias in the

conviction rates shown in the tables but that true national

totals might show a charging rate and dismissal rate that is

somewhat higher than that in the tables. Some of the differences in the figures given are probably due to differences in

the offense mix in the smaller jurisdictions. 

As about 4% of the offenders in the BJS data base were

under 18 years of age, it was necessary to remove data for

these offenders before carrying out the estimating

procedure.

Germany

German law allows the prosecutor to file a complaint

(Anklage) in much the same way that an American prosecutor files a complaint. The German prosecutor is also allowed, however, to follow an alternative procedure. He

may propose a penal order (Strafbefehl) with a lesser penalty. If the defendant (and the court) accept the penal order,

there is no trial. Abgeurteilte in the court statistics include

cases in which there is a complaint and those in which

there is a penal order.26

Three methods for estimating the percentage of German

cases charged were considered in preparing this report 

 using a ratio based on Abgeurteilte in the court statistics

and Tatverdächtige in the police statistics,

 relying on ad hoc attrition studies,

84 German and American Prosecutions

26All cases in which a penal order (Strafbefehl) becomes final

are included in the court statistics (Strafverfolgung). Cases in

which the defendant successfully objects to a penal order (Strafbefehl) are not included unless the prosecutor later files a complaint (Anklage). 
 and using the Abgeurteilte/Tatverdächtige ratio modified

to include an estimate for the number of cases charged with

a lesser offense and the number of convictions for a lesser

offense.

When the study began, it appeared possible to obtain figures on the number of suspects by offense and the number

of prosecutorial charges (Anklage) by offense. As the study

progressed, it became apparent that good data on the number of suspects were available but that it was not possible

to get good Anklage data by offense.

The court statistics (Strafverfolgung) contain a category

(Abgeurteilte) that at first glance appears to contain good

charge data. This category contains data on cases that are

charged and convicted and on cases that are charged but

not convicted. The cases that are charged but not convicted

are listed by the Anklage (charge) offense. The cases that

are charged and convicted are, however, listed only by the

conviction offense. This means that the listing for a particular offense contains the cases charged for that offense

and not convicted but not the cases charged for that offense

and then convicted of a lesser offense. The listing for a particular offense also does not include persons referred to the

prosecution for that offense and charged with a lesser offense. Because both these are large categories, the court

statistics are a fairly weak indicator of cases charged. (It is

known that the prosecuting authorities in Germany, like

those in the United States, charge many cases at a lower

level than the police definition.)27

The basic method used in this report has been to rely on ad

hoc studies. This method has a number of disadvantages.

German and American Prosecutions 85

27See Appendix B, Finding a common starting point for statistical comparison, page 66.
Although there are good German attrition studies for many

of the offenses included in the analysis, most of these rely 

on data from the 1970s or the early 1980s. Some of the

studies are based on as many as 8 of the 116 German

prosecutorial districts, but others are based on a single district. This has importance as it is known that there is considerable variation from district to district. The geographic

coverage of the studies is also not uniform from offense to

offense.

Despite these drawbacks the ad hoc studies produce more

plausible results than simply comparing the police and the

court statistics. Using a ratio based on Abgeurteilte in the

court statistics and Tatverdächtige in the police statistics is

not totally invalid, as every case which it includes is in fact

a case charged. This method is, however, a clear underestimate by an unknown amount.

The third method of comparison would in essence combine

features of the first two methods. It starts with the court/

police comparison, but uses the ad hoc studies to add an

estimated number for cases charged with lesser offenses

and for cases convicted of lesser offenses. A major drawback to this method is the limited data available on charges

and convictions involving lesser offenses.

86 German and American Prosecutions
As a practical matter, the best ad hoc study that could be

found was used to make the basic figure for cases charged.

This was then compared with other ad hoc studies and the

court/police ratio. This comparison showed that court/

police ratio almost always substantially undercounted the

rate of charging:

The procedures used for estimating cases charged for specific offenses follow.

Willful homicide. The best known German attrition type

study of willful homicide is Sessar (1981). This study is

based on all 1970 and 1971 Baden-Württemburg cases of

Mord, Totschlag, Kindestötung, and Körperverletzung mit

Todesfolge. Like many German homicide studies, however,

the study combines homicide and attempted homicide data

in such a confusing way that no good attrition table can be

made either for homicide or for attempted homicide. The

tables on pages 63, 103, 134-135, 168-169, and 266 contain most or all of the categories necessary for an attrition

analysis of the homicide cases but lack the necessary

breakouts separating the homicide and attempted homicides. Blankenburg and others (1978), pp. 261-267, analyze the extent of prosecution participation in the

investigation in these cases. Sessar (1980) is based on the

German and American Prosecutions 87

Crime Ad Hoc Study

Abgeurteilte/

Tatverdächtige

Willful homicide 71% 56%

Forcible rape 45 33

Robbery 57 36

Aggravated assault -- 27

Burglary 73 47

Serious theft 55 16

Drugs 73 39

-- Not applicable
same data as the better known 1981 study but is presented

much more clearly.

Weiher (1989) analyzes cases cleared up in Hamburg during 1980-1984. Steitz (1993) reviews the available studies

and discusses a 1971 data set from Nordrhein-Westfalen.

Both the Sessar and the Weiher data suggest that there are

no attempts in the Körperverletzung mit Todesfolge data

and that all cases in this category should be included in the

analysis.

Sessar (1980), p. 199, finds that 71% of the cases referred

by the police are charged; Weiher (1989), p. 95, 91%; and

Steitz (1993), p. 113, 74%. This report uses the Sessar

data because it contains more extensive and better Anklage

(charge) data.

Forcible rape. Most German studies that analyze case attrition (Fallschwund) for forcible sexual crimes focus on

forcible rape (Vergewaltigung) and do not include other

forcible sex crimes (such as sexuelle Nötigung). Studies by

Blankenburg and others (1978), Brusten (1974), Fehrmann

and others (1986), Weis (1982), and Dölling (1987) all focus on Vergewaltigung, while a study by Steinhilper

(1986) covers both Vergewaltigung and sexuelle Nötigung. 

Blankenburg's data are 1973-1974 cases from eight widely

scattered areas (Hamburg, Darmstadt, Duisburg, Regensburg, Arnsburg, Itsehoe, Hechingen, and Coburg). Dölling

uses 1978 cases from Hanover, Göttigen, and Kassel, and

Steinhilper 1977-79 cases from Detmold

(Nordrhein-Westfalen). 

Most of these studies find that a high percentage of the

cases referred by the police to the prosecutor are not

charged: Blankenburg, p. 70 (60% not charged); Brusten,

88 German and American Prosecutions
p. 133 n.7 (63% not charged); Fehrmann, p. 233 (57% not

charged); Weis, p. 203 (53% not charged); and Dölling, p.

313 (table 174) (55% not charged). Only Steinhilper, pp.

125, 77, finds a substantially smaller percentage not

charged (29% of rapes and attempted rapes; 39% of the

combined category). This report uses the Dölling figures

because his study is one of the most recent and best of the

studies and because he has comparable data for robbery and

burglary.

If the 1993 Abgeurteilte figures were adjusted to take account of the Dölling charges (Anklage) that are for lesser

offenses, the total approaches the number produced by applying the Dölling charged percentage to the 1992 police

figures. This reinforces the view that the Dölling figures

have substantial validity. 

If sexuelle Nötigung were included in the analysis, the

number of adult Tatverdächtige in the police statistics

would be increased by 54% and the number of Abgeurteilte

in the court statistics by 56%. 

Robbery. German studies analyzing case attrition in robbery cases include Blankenburg and others (1978), Dölling

(1987), and Förster (1986). The Blankenburg and Dölling

samples are the same as those discussed in the section on

Forcible rape. Förster examines 1978-1980 robberies in

Lübeck.

All three of these studies find that a high percentage of the

cases referred by the police to the prosecution are charged:

Blankenburg and others, p. 70 (55% charged); Dölling, vol.

2, p. 235 (57% charged); Förster (62% charged). This report uses the Dölling data.

German and American Prosecutions 89
Aggravated assault. As indicated in Appendix A, Offense

comparisons, aggravated assault in Germany includes attempted murder, attempted manslaughter, and gefährliche

Körperverletzung. There do not appear to be any German

attrition studies that cover all these categories.

Sessar (1980, 1981), Volmer (1989), and Steitz (1993) discuss attempted murder and attempted manslaughter cases.

The Sessar sample is the same as that discussed in the section on Willful Homicide. Steitz's sample comes from 1971

cases in six large cities. Attempted manslaughter data are

missing, however, from three of the six cities. 

Of the attempted murder and attempted manslaughter

cases in Sessar (1980), pp. 62-63, 88-90% were charged,

but only 27% were charged as attempted murder or attempted manslaughter. Most were radically downgraded

by the prosecutor. About half appear to be charged as aggravated assault. Of the attempted murder and attempted

manslaughter cases in Volmer, pp. 262-278, 75% were

charged but only 43% as attempted murder or attempted

manslaughter. 

Sessar (1979) indicates that big city police departments use

tighter definitions for attempted murder and attempted

manslaughter than smaller departments. 

Steffen and Polz (1991) and Theerkorn (date unknown)

analyze violence within the family. Only a small percentage of the Steffen-Polz offenses were aggravated assaults

(gefährliche Körperverletzung), but 78% of these were not

charged. P. 117. Simple assaults were the most frequent

offense. Eighty-four percent of all offenses were not

charged. Schaubild 7. Simple assaults were also the most

frequent offense in the Theerkorn study, pp. 117 and 127.

About 80% of his cases were not charged. 

90 German and American Prosecutions
Kotz (1983) analyzed negligent assault cases, finding that

only 54% were charged or given a penal order. Most of

these were given a penal order (44%) rather than charged

(10%). 

One method for estimating the cases charged for aggravated assault would be to use the Sessar (1980) figures

(88%) to project the attempted murder and attempted manslaughter cases and the Steffen-Polz (1991) figures (22%)

to project the remainder of the cases. This method of estimating produces a number of charges filed, however, that

is even smaller than the number of Abgeurteilte given in

the court statistics. As the number of cases charged cannot

be less than the number of Abgeurteilte and as the number

of Abgeurteilte is known to be a significant underestimate

of the charges filed, this method is obviously defective.

This report uses the number of Abgeurteilte as the basis for

estimating the number of charges. Although this is clearly

an underestimate, it is the best estimate available.

One reason that the not charged figures are so high in the

assault category is that the principle of obligatory prosecution (Legalitätsprinzip) applies in a restricted way. Simple

assault and negligent assault cases [Körperverletzung

(StGB §223) and fahrlässige Körperverletzung (StGB

§230)] can be prosecuted by the state only if the victim

files a petition. Simple assault cases are not included in the

sample for this report, but many cases that are classified as

Gefährliche Körperverletzung by the police are downgraded to simple assault or some other category requiring a

petition (Antrag) by the prosecutor. Filing a petition is a

relatively simple procedure, but requires initiative on the

part of the complainant. Only if there is "a special public

interest" (besonderen Öffentlichen Interesse) in prosecuting is the prosecutor allowed to prosecute simple assault

cases without a petition from the victim.

German and American Prosecutions 91
German law, like American law, generally does not allow

private parties to file criminal prosecutions. Private parties

are, however, allowed to file criminal prosecutions in certain limited situations. Cases involving assault (StGB

§223), certain kinds of aggravated assault (StGB §223a),

and certain kinds of threats (StGB §240) are among the

cases for which this is allowed.28 Private prosecutions are

not easy, however. The complainant must first go to a conciliator and give advance security for costs (StPO §§379,

379a) and then go through a conciliation process (§380).

The prosecutor may take the case over if there is a public

interest in the proceeding. This is seldom done, however.

The lowest level of aggravated assault [gefährliche Körperverletzung (StGB §223a)] does not require a petition but

can be prosecuted privately. It is thus in an ambiguous position insofar as the obligatory prosecution principle (Legalitätsprinzip) is concerned. See, for example, Schneider

(1986), pp. 170-173; Heinrich (1993). More serious aggravated assaults (schwere Körperverletzung, versuchter

Mord) are much more clearly governed by the obligatory

prosecution principle.

Burglary. The German studies that analyze case attrition in

burglary cases include Dölling (1987) and Steffen (1976).

The Dölling data are the same as that discussed in the sections on Forcible rape and Robbery above. The Steffen

data are the same as that used by Blankenburg and others

(1978). These two studies show somewhat different charging rates: Dölling, vol. 2., p. 153 (73% charged); Steffen,

pp. 178-79, 327 (51% charged). The Steffen figures are an

interpretation based on figures indicating that 40% of the

92 German and American Prosecutions

28In cases where a German prosecutor's office finds no special

public interest in prosecuting, the office will frequently inform

the victim of his or her right to prosecute privately.
cases are convicted and 11% acquitted.29 The report uses

the Dölling figures as they are more detailed and more

recent.

Motor Vehicle Theft. Steffen (1976) contains data on motor vehicle theft. Her study, pp. 178-79, 327, suggests that

55% of the motor vehicle cases are charged. This is an interpretation based on figures indicating that 45% of the

cases are convicted and 10% acquitted.29

Serious Theft. Blankenburg and others (1978), pp. 70, 84,

include data on serious theft (schwerer Diebstahl). This

category includes burglary and motor vehicle cases, but is

not limited to them. Because of problems with the totals

given for the number of cases included in the tables, it is

not possible to separate the various categories, and there

are problems in figuring out what the actual dispositions

are. The fact that Blankenburg's cases are from 1973-74 is

also a problem because of changes in German criminal procedure. A code section added in 1974 (StPO §153) allows

German prosecutors to dispose of minor cases through the

voluntary payment of small fines and other similar methods. This report uses the figure from Steffen (1976), pp.

178-179, for auto theft because her table is clearer and because auto theft is a big part of serious theft in Germany.

Her data are from the same data set as the Blankenburg

data, but auto thefts would be much less affected by the

change in law than general theft.

Drugs. Hellebrand (1993), p. 41, reports that 27% of the

drug cases referred by the police are not charged. His figures are based on the Datenbank BIFOS. He indicates that

the percentage not charged varies enormously from state to

German and American Prosecutions 93

29The tables also contain data on diversions and dismissals in the

Hauptverhandlung but these are hard to interpret.
state  from 5.9% in Bavaria, for example, to 75.6% in

Berlin. 

Arson. This category presented too many problems and

was omitted from the U.S./Germany prosecutorial

comparison. 

Convictions

United States

About 10% of the cases in the BJS data base for Felony

Defendants in Large Urban Counties, 1992 had not

reached final adjudication at the time the data was collected. In the present report these pending cases were

treated as if they had the same distribution as the cases for

which adjudication was complete. Convictions on the

charged offense were estimated in two stages. In stage one

the number of sentences in which the charged offense was

the adjudication offense was divided by the number of sentences for all cases charged with this offense. In stage two,

the resulting percentage was multiplied by the conviction

rate for this offense. The U.S. figures include pleas of

guilty, convictions by a jury, and convictions by a judge

sitting without a jury.

Germany

The German figures are based on convictions by a judge

sitting alone or a judge sitting with other professional or

lay judges. They also include cases with penal orders

(Strafbefehle). The figures are taken from Statistisches

Bundesamt, Strafverfolgung 1993, table 2.2 (die verurteilt

wurden) for adults and from table 2.1 for 18 to 20-year

olds handled as juveniles. 

94 German and American Prosecutions
In the tables the number of convictions is given as a percentage of the persons arrested or referred for prosecution

for the offense discussed in each table. Two percentages

are given for each table. The first is the percentage of persons arrested or referred for prosecution for the table offense who are convicted of any charge. For the robbery

table, for example, this percentage would be that proportion of the persons referred for prosecution for robbery who

have been convicted of robbery or any other charge. The

second percentage given concerns those defendants who

are convicted of the table offense itself. For the robbery

table, this second percentage would be that proportion of

the persons referred for prosecution for robbery who have

been convicted of the crime of robbery itself. Because

some persons charged with robbery will be convicted of

lesser or other offenses, this percentage is necessarily lower

than the percentage given for those convicted of any

offense.

Sentences

United States

In addition to the charged cases that were still pending at

the time the data collection for the BJS study Felony Defendants in Large Urban Counties, 1992 was completed,

there were also some persons convicted who had not been

sentenced. In the present report these pending cases are

treated as if they had the same distribution as the cases that

had already been sentenced. Sentences for the charged offense were estimated by multiplying the prison/total ratio

by the conviction rate for the charged offense. Although a

small percentage of those sentenced for prison received

sentences of less than 12 months, all those receiving prison

sentences were included in the tables. Similarly, although a

small number of those receiving jail sentences received

German and American Prosecutions 95
sentences of 12 months or more, all these persons were excluded from the tables.

Germany

The figures are taken from Statistisches Bundesamt, Strafverfolgung 1993, table 3.1 for adults and table 4.1 for 18 to

20-year olds handled as juveniles. Suspended sentences are

treated as non-prison sentences in the figures.

The tables on sentencing show the percentage of defendants arrested or referred for prosecution for the table offense who have received a prison sentence of 1 year or

more.

The percent of those charged who receive a prison sentence

of 1 year or more is shown separately for: (1) those convicted of the table offense (robbery, for example); (2) those

convicted of some other offense; and (3) both combined.

The table also includes the percentage having a prison sentence of 1 year or more as a percentage of those sentenced

for the table charge.

Juvenile cases

United States

About 4% of the felonies filed involved persons younger

than 18 years old. Although these juveniles were prosecuted as adults, they were excluded from this report.

Germany

Tatverdächtige statistics in Germany are generally given

for both juveniles and adults together. In the German police

statistics there is no trouble separating the statistics for

96 German and American Prosecutions
Tatverdächtige under 18 years of age from the Tatverdächtige who are 18 and over.

The court statistics are more complicated because some 18

to 20-year-olds are handled as adults but many are handled

as juveniles. Some tables in the Strafverfolgung give details on the 18 to 20-year-olds but some do not. The table

that explains what happens to defendants who are not sentenced (table 2.2) is one of those that does not contain clear

breaks. The juvenile court data in this table have been apportioned on the basis of data from table 2.1. Because table

2.1 gives the number of 18 to 20-year-olds who are charged

and the number who are sentenced in the juvenile court, no

apportionment of these figures was necessary. The other

figures in table 2.2 (dismissed, acquitted, etc.) were apportioned on the basis of the figures for the cases charged (Abgeurteilte). (The actual procedure is somewhat

complicated. Verurteilte figures were subtracted from Abgeurteilte figures and then apportioned on the basis of the

Abgeurteilte ratios.)

German and American Prosecutions 97

Table C-1

Juvenile arrests and referrals in 1992

Percent of all

arrests and referrals

U.S. Germany

Willful homicide 15% 6%

Forcible rape 16 7

Robbery 26 25

Aggravated assault 15 16

Burglary 34 25

Other serious theft 31 30

Arson 49 27

Drug offenses 8 7

Sources:

United States: Crime in the United States, 1992, table

41.

Germany: Statistisches Bundesamt, Strafverfolgung
98 German and American Prosecutions

Table C-2

Juveniles handled in adult court

Percent of all

under 18 cases

Percent of all

adult court cases

U.S. Germany U.S. Germany

Willful homicide 41% 0% 11% 0%

Forcible rape 11 0 4 0

Robbery 20 0 10 0

Aggravated assault 8 0 4 0

Burglary 3 0 3 0

Other serious theft 2 0 4 0

Drug offenses 13 0 3 0

Sources:

United States: Felony Defendants in Large Urban Counties, 1992,

tables 7-13.

Germany: Statistisches Bundesamt, Strafverfolgung 1993, tables

2.1, 2.2.

Table C-3

18 to 20 year-olds handled in juvenile court

Percent of all cases for 18

to 20-year-olds charged

U.S. Germany

Willful homicide 0% 90%

Forcible rape 0 85

Robbery 0 92

Aggravated assault 0 77

Burglary 0 89

Other serious theft 0 85

Arson 0 80

Drug offenses 0 81

Sources:

United States: Felony Defendants in Large Urban

Counties, 1992. 

Germany: Statistisches Bundesamt, Strafverfolgung

1993, table 2.1.
Issues requiring further study

Some issues concerning the German system that were not

fully analyzed are discussed below. 

Non-German Defendants. A sizeable proportion of German defendants are non-Germans. Defendants who are in

the country illegally are subject to deportation. As in the

United States, prosecutors sometimes prefer to deport

rather than prosecute. The decision about deportation is

made by the administrative agency rather than the prosecutor, but these two agencies seem to work together a great

deal.

Deportation is not an option for asylum applicants or for

aliens who are in the country legally. Asylum applicants

may be deported, but only under certain very restrictive

conditions.

The court statistics contain data on non-German defendants, but no data about the number of defendants who are

deported (Abschiebung).

The prison statistics (Strafvollzug)contain data on persons

held in Abschiebunghaft. This is a form of detention for

persons arrested for crime but subject to deportation. These

statistics do not disclose, however, how many of those who

are held in detention are ultimately deported.

Neither the court nor the prison statistics contain information about the number of defendants deported. Such information is available only from the Ministry of the Interior

(Innenministerium). 

German and American Prosecutions 99
Insanity and Mental Illness. Persons who are insane

(Schuldunfähig) are not considered guilty. If the evidence

of insanity is clear, the prosecution may choose not to

bring charges. If the prosecution does bring charges but the

court finds that the defendant is insane, the defendant will

be found not guilty (freispruch). If the defendant is considered dangerous, the defendant will be placed in a mental

institution. (StGB §63). The court statistics contain data on

the number of defendants found not guilty in court and

placed in a mental institution. These data are less clear,

however, than might be wished. (Strafverfolgung 1993,

tables 2.2, 5.) The court statistics do not show the number

of defendants who are never charged. 

Diversion. In both Germany and the United States some

persons accused of crime are handled without full prosecution. Generally the accused is offered some alternative to

full prosecution, such as participation in a drug treatment

program, restitution, or payment of a small fine. In the

United States, prosecution in such cases is often suspended

until successful completion of the alternative measure. In

the German system, the law allows the alternative measure

to be substituted for full prosecution. 

In both systems diversion may take place prior to the filing

of a charge or after a charge has already been filed. The

table figures for the United States include only those diversions occurring after the filing of a felony charge by the

prosecution. They do not include diversions taking place

before a felony charge has been placed. If these were included, it is likely that at least for some offenses the percentage diverted would be higher. 

In Germany diversion breaches the mandatory prosecution

principle. A 1974 statute authorizes this breach in order to

make it easier to dispose of minor cases (technically "cases

100 German and American Prosecutions
in which there is no official interest"). The German prosecutorial statistics (Staatsanwaltschaften) contain data about

diversions but do not contain breakouts by offense.

The German figures in this report are estimates based on

von Schlieben (1994). This study is based on cases from

Nürnberg-Fürth in 1983. The study shows that section

153a, the most frequently used diversion procedure, is used

primarily for minor theft and traffic offenses. Only 3.5 %

of the section 153a cases studied were crimes against persons. For most offenses the estimation procedure used was

to multiply the percent of section 153a used for a particular

offense (page 21) by the total number of section 153a cases

reported in the Staatsanwaltschaft 1992, table 2.2.1. 

Aggravated assault (Gefährliche Körperverletzung) is not

one of the offenses listed on p.21, but was included in the

test sample for the study. It made up 0.6% of the cases in

the test sample. As the percentages for particular offenses

in the test sample are close to those that appear in the full

study, this report assumed that they were the same and

used the test sample figure for projecting diversions for

aggravated assault. 

German and American Prosecutions 101
Appendix D

German criminal justice statistical series

Polizeiliche Kriminalstatistik. These are police statistics

similar to the Uniform Crime Reports. They are published

by the Bundeskriminalamt, the German counterpart of the

FBI. This report includes data from the former East German States as well as the West German States. Because the

older East German data are not comparable with the West

German data, most trend data are only for West Germany. 

Strafverfolgung. This series gives sentencing data in some

detail for both adults and juveniles. It also includes some

data on unconvicted cases, including some pretrial release

data. The series is published by the Statistisches Bundesamt, which has some similarity to the U.S. Bureau of the

Census. The data are mostly based on the offense of conviction. This series is always several years behind in its

publication. Through 1993, these statistics include only

West Germany.

Rechtspflege. This series gives organizational and output

data for all justice agencies and activities except the police.

It is published by the Statistisches Bundesamt. The different volumes included in this series are published at different times. 

Strafgerichte. This series concerns the activities of the

criminal courts. This series does not include offense data. It

is published by the Statistisches Bundesamt. In the early

1990s, this series did not include East German data.

Staatsanwaltschaften. This series concerns prosecution. It

is published by the Statistisches Bundesamt. It does not

include offense data. In the early 1990s, it did not include

East German data.

102 German and American Prosecutions
Bibliography

W. Scott Van Alstyne, "Comment: The District Attorney

  A Historical Puzzle," 1952 Wisconsin L. Rev. 125.

Erhard Blankenburg, Klaus Sessar, and Wiebke Steffen,

 Die Staatsanwaltschaft in Prozess strafrechlicher 

 Sozialkontrolle (Berlin: Duncker & Humblot, 1978).

Manfred Brusten, "Polizei-Staatsanwaltschaft-Gericht.

 Empirische Daten und Thesen zur Produktion von

 Kriminalstatistiken, "Monatschrift für Kriminologie und 

 Strafrechtsreform 57 (1974): 129.

Mirjan Damaska, The Faces of Justice and Authority

 (New Haven: Yale University Press, 1986).

Dieter Dölling, Polizeiliche Ermittlungstätigkeit und 

 Legalitätsprinzip (Wiesbaden: Bundeskriminalamt,

 1987). 

Frieder Dünkel, "Germany," in Frieder Dünkel and Jon

 Vagg, Untersuchungshaft und Untersuchungshaft-

 vollzug (Freiburg, Germany: Max-Planck-Institut für

 ausländisches und internationales Strafrecht, 1994).

Adhemar Esmein, A History of Continental Criminal 

 Procedure (Boston: Little, Brown, 1913; reprinted 

 Rothman, 1968).

Floyd Feeney, Forrest Dill and Adrianne Weir, U.S. 

 Department of Justice, Arrests Without Conviction: 

 How Often They Occur and Why (Washington, D.C.: 

 U.S. Government Printing Office, 1983).

German and American Prosecutions 103
Hans Fehrmann, Michael Baurmann, and others, Das 

 Misstraun gegen vergewaltigte Fraun: Erfahrungen

 von Vergewaltigungsopfern (Bremen: H. Schafer, 3d

 ed., 1986).

Hans-Jürgen Förster, Der Täterschwund zwischen der 

 Polizeilichen Kriminalstatistik und der 

 Strafverfolgungsstatistik (diss. Kiel, 1986)

Andre Fournier, Code de procedure criminelle de l'Etat de

 New-York (Larosse, 1893), quoted in Esmein, p. 594,

 n.2. 

Richard Frase and Thomas Weigand, "German Criminal

 Justice as Guide to American Law Reform: Similar

 Problems, Better Solutions?," 18 Boston College

 International & Comparative L. Rev. 317 (1995).

Gary Friedman, "The West German Day-Fine System: 

 A Possibility for the United States?," 50 U. Chicago L.

 Rev. 281 (1983).

R.W. Gillespie, "Fines as an Alternative to Incarceration," 

 44 Federal Probation 20-26 (1980).

Julius Goebel, Jr. and Raymond Naughton, Felony and

 Misdemeanor (New York: Commonwealth Fund,

 1944) (Patterson Smith reprint, 1970). 

Oliver W. Hammonds, "The Attorney General in the

 American Colonies," 1 Anglo-American Legal History

 Series 1 (1939) (New York University).

Johannes Hellebrand, Bekämpfung der 

 Rauschgiftkriminalität durch sinnvollen Einsatz des

 Strafrechtes (Wiesbaden: Bundeskriminalamt, 1993).

104 German and American Prosecutions
Joachim Herrmann, "The Rule of Compulsory Prosecution 

 and the Scope of Prosecutorial Discretion in Germany,"

 41 U. Chicago L. Rev. 468 (1974).

Joachim Herrmann, "Bargaining Justice--A Bargain for 

 German Criminal Justice?," 53 U. Pittsburgh L. Rev.

755 

 (1992).

Peter Kotz, Die Wahl der Verfahrensart durch den 

 Staatsanwalt (diss., Augsburg, 1983).

Wayne LaFave, Arrest: The Decision to Take a Suspect 

 into Custody (Little Brown, 1965).

Wayne R. LaFave and Jerold H. Israel, Criminal 

 Procedure (St. Paul: West, 2d. ed., 1992).

John Langbein, "Controlling Prosecutorial Discretion in

 Germany," 41 U. Chicago L. Rev. 439 (1974).

John Langbein, Prosecution in the Renaissance: England,

 France and Germany (Cambridge: Harvard University 

 Press, 1974).

John Langbein, Comparative Criminal Procedure: 

 Germany 87-118 (1977).

John Langbein, "The Historical Origins of the Privilege

 Against Self-Incrimination at Common Law," 92 

 Michigan L. Rev. 1047 (1994).

James P. Lynch, "A Comparison of Prison Use in England,

 Canada, West Germany and the United States: A 

 Limited Test of the Punitive Hypothesis," 79 Journal of

 Criminal Law & Criminology 180 (1988).

German and American Prosecutions 105
Montesquieu, The Spirit of the Laws (Cambridge: 

 Cambridge University Press, 1989) (Cohler, Miller, 

 Stone, trans.).

William Pizzi, "Understanding Prosecutorial Discretion in 

 the United States: The Limits of Comparative Criminal

 Procedure as an Instrument of Reform," 54 Ohio State

 L. J. 1325-1373 (1993).

Albert J. Reiss, Jr., "Public Prosecutors and Criminal

 Prosecution in the United States of America," 20

 Juridical Review 1, 3-8 (1974).

Eike von Schlieben, Legalbewährung Nach Einstellung des

 Strafverfahrens Gemäss s.153a I StPO (diss., 

 Erlangen-Nürnberg, 1994). 

Ursala Schneider, Körperliche Gewaltanwendung in der

 Familie (diss., Munster, 1986).

Klaus Sessar, "Der zweifelhafte Aussagewert der 

 Polizeilichen Kriminalstatistik bei den versuchten 

 Tötungen," Kriminalistik 33: 167 (1979).

Klaus Sessar, "Die Umgehung der lebenslangen 

 Freiheitsstrafe," Monatsschrift für Kriminologie und

 Strafrechtsreform 63: 193, 199 (1980).

Klaus Sessar, Rechtliche und soziale Prozesse einer

 Definition der Tötungskriminalität (Freiburg: Max

 Planck Institut, 1981).

Wiebke Steffen, Analyse polizeilicher Ermittlungstätigkeit 

 aus der Sicht des späteren Strafverfahrens (Wiesbaden:

 Bundeskriminalamt, 1976).

106 German and American Prosecutions
Wiebke Steffen, Inhalte und Ergebnisse Polizeilicher 

 Ermittlungen (Munich: Bavarian Landeskriminalamt,

 1982).

Wiebke Steffen and Siegfried Polz, Familienstreitigkeiten

 und Polizei (Munich: Bavarian Landeskriminalamt,

 1991). 

Wilfried Rasch, Forensische Psychiatrie (Stuttgart: 

 Kohlhammer, 1986).

Udo Steinhilper, Definitions- und Entscheidungsprozesse

 bei sexuell motivierten Gewaltdelikten: Eine empirische

 Untersuchung der Strafverfolgung bei Vergewaltigung

 und sexueller Nötigung (diss., Konstanz, 1986).

Dieter Steitz, Probleme der Verlaufstatistik: 

 Verdeutlichung anhand einer Erhebung zu 

 Tötungsdelikten (diss., Tübingen, 1993).

Raymond H. C. Teske, Jr., "Comparison of the Criminal

 Statistics of the United States and the Federal Republic

 of Germany," 10 Journal of Criminal Justice 359

 (1982).

Gerd Theerkorn, Gewalt im sozialen Nahraum (date

 unknown).

Walter Volmer, "Kriminalistik/Kriminologie der

 Tötungsdelikte  Auswertung von Akten des 

 Polizeiprasidenten Köln der Jahre 1976-1985," in

 Scriftenreihe der Fachhochschule für Offentliche 

 Verwaltung NW, Band 20/1989, pp. 262-278.

German and American Prosecutions 107
Thomas Weigand, "Prosecution: Comparative Aspects," in

 Sanford Kadish, ed., Encyclopedia of Crime and Justice

 (New York: Free Press, 1983), vol. 3, pp. 1296-1304.

Thomas Weigand, "Sentencing in West Germany," 42

 Maryland L. Rev. 37 (1983).

Ralf Weiher, Vollendete Tötungsdelikte: Eine

 interdisziplinäre Studie unter besonderer 

 Berücksichtigung soziologischer, viktimologischer und

 kriminalpädagogischer Aspekte (diss., Bochum, 1989).

Kurt Weis, Die Vergewaltigung und ihre Opfer: Eine 

 viktimologische Untersuchung zur gesellschaftlichen

 Bewertung und individuellen Betroffenheit (diss., 

 Stuttgart, 1982).

108 German and American Prosecutions
Acknowledgments

It is not possible to mention all of the many people and organizations who contributed to this study. I would like to

express my special thanks, however, to the Bureau of Justice Statistics for its support and to Jan Chaiken and Carol

Kalish for their advice and encouragement. Special thanks

are also due to the J. William Fulbright Foreign Scholarship Board and the Commission for Educational Exchange

between the United States of America and the Federal Republic of Germany, both of which provided crucial financial support, and to the law faculty at the University of

Augsburg, which kindly served as my home institution in

Germany during the study.

Professor Joachim Herrmann, my friend and host at the

University of Augsburg, spent countless hours educating

me about the German criminal justice system, arranging

contacts with police and prosecutors, and helping with the

comparisons. Without his extensive knowledge of both the

German and American systems, the project could not have

been completed. Professor Wolfgang Heinz, University of

Constance, also gave generously of his time and was a

sure-footed and invaluable guide to German criminology

and the secrets of the German criminal statistics.

Uwe Dörmann, Scientific Director, Bundeskriminalamt,

provided important advice and assistance as did Quint

Hegner, Division of Law Enforcement, California Department of Justice; James Lynch, American University; Reinfried Pailer, State Office of Statistics, Baden-Württemberg;

Wiebke Steffen and Karl Wunderle, Criminological Research Group, Bavarian Landeskriminalamt; and Egon Weber, Landeskriminalamt, Hamburg. Herman Eder, Chief

Director, Swabian Division, Bavarian Police, made it possible to observe the everyday work of the Augsburg police,

German and American Prosecutions 109
and the officers of the Augsburg police made that an illuminating and valuable experience. Hans Jochen Wagner,

Chief Prosecutor, Muenster, Nordrhein Westfalen, helped

greatly in explaining and clarifying the work of the prosecutor's office. H. Nikolaus Bosch, Joachim Kaetzler, and

Dierck Schindler, University of Augsburg, assisted in the

literature search and patiently explained many things about

the German system. Susan Wilcox assisted with the calculations for the United States data. Needless to say the

views expressed are those of the author and not those of the

many people who kindly provided advice and assistance.

110 German and American Prosecutions
U.S. Department of Justice

Office of Justice Programs 

Bureau of Justice Statistics

Jan Chaiken, Ph. D.

Director

This document was prepared under contract for the Bureau

of Justice Statistics as part of its International Statistics

Program. The author assumes sole responsibility for the

contents including statistical assumptions and estimating

procedures.

BJS Discussion Papers promote the exchange of information analysis, and ideas on issues related to justice statistics

and to the operations of the justice system.

The author may be contacted at 

School of Law

University of California, Davis

Davis, CA 95615

Phone: 916-752-2893

Fax: 916-752-4704

ii German and American Prosecutions
Contents

The United States and Germany 2

Suspects arrested or referred for prosecution 9

Cases charged by the prosecution 11

Convictions 15

Sentencing 27

Arrest and pretrial detention 35

Lesser crimes 38

Definitions 39

Appendixes

A: Offense comparisons 42

 Willful homicide 42

 Forcible rape 47

 Robbery 49

 Aggravated assault 52

 Burglary 55

 Motor vehicle theft 57

 Other serious theft 58

 Drug offenses 61

 Arson 63

B: Finding a common starting point

for statistical comparison 66

 Tatverdächtige and arrestees: How similar? 68

 Anklage data as an alternate starting point 76

 Should the Tatverdächtige statistics be adjusted? 78

C: Methodology 81

 Basic approach 81

 Estimating arrests 82

 Estimating cases charged 83

 Convictions 94

 Sentences 95

German and American Prosecutions iii
 Juvenile cases 96

 Issues requiring further study 99

D: German criminal justice statistics series 102

Bibliography 103

Acknowledgments 109

iv German and American Prosecutions
114 German and American Prosecutions