A Closer Look at Discretion: The Prosecution of Serious Economic Crimes

Abstract

Comparative law scholars have long held Germany's criminal justice system in high regard due to the constraints on prosecutorial discretion. In this chapter, I examine the prosecution of serious economic crimes and argue that economic crimes prosecutors possess wide latitude in how they choose to investigate and prosecute economic crimes. Despite that latitude, resource allocations made on the Laender level, in particular the decision to create specialized economic crimes department strongly shape the prosecutorial practice and impact prosecution rates.

By creating teams of prosecutors with specialized expertise, some states have made a strategic choice to prioritize the prosecution of serious economic crime and corruption. In many of those specialized departments, prosecutors create work routines which reflect a shared approach to practice that, in some cases, is shared by the investigative team itself. Due to the complexity of many economic crimes, prosecutors must find ways to successfully work in joint investigation teams across agency lines. To succeed in this environment, during the investigation process, many prosecutors have had to abandon work practices of the past which reflected prosecutors’ strict hierarchical control of the investigation’s progress.

Keywords: Economic Crimes, Prosecutorial Discretion, Comparative Law, Germany