Prosecutorial discretion in Germany's Rechtsstaat: Varieties of practice and the pursuit of truth

Do the decision-making practices of German prosecutors mirror their normative mandate to objectively seek the truth and enforce the criminal law uniformly? Described by one scholar as the "most objective civil servants in the world," German prosecutors are inculcated through their training and socialization processes with the mandate to serve as "guardians of the law." Guided by a criminal code that mandates the prosecution of all serious crimes and protected by the guarantee of life time employment, German prosecutors appear to be insulated from political influence and free to enforce the law as it is written. At first glance, German prosecution practice would seem offer a striking exception to the mantra of American law and society theorists that the law is not enforced as it is written.;This dissertation examines the decision-making practices of German prosecutors. Using interview and observational data, the research presented here explores actual decision-making practices and inquires whether those practices conform to the idealized vision of civil servants perpetuated by German legal theorists. Paradoxically, while the German criminal code attempts to constrain prosecutorial discretion and shield the criminal justice system from political influence, this dissertation shows that a wide variance between the law on the books and the law in practice exists. I argue that, at present, the principle of mandatory prosecution plays a minimal role in constraining discretion and that prosecutors possess wide flexibility in applying "objective" legal standards and determining what constitutes justice. The existence of this variance undermines the German conception of the rule of law as well as the achievement of the normative goals that the legal system purports to advance.