American Federalism for Europeans 101 (Once Again)

Reacting to the news that Roman Polanski has been arrested in Switzerland and may be extradited to California to face charges on a 31-year-old sex charge, the Polish foreign minister Radoslaw Sikorksi said: "I am considering approaching the American authorities over the possibility of the U.S. president proclaiming an act of clemency, which would settle the matter once and for all."

WRONG! I see this error constantly in the European media. As we see, even senior statesmen aren't immune.

Europeans, please listen very carefully: The President cannot pardon or grant clemency to Polanksi, because Polanski was convicted under state law, not federal law. Please get this into your heads, European jouralists: American federalism is a thousand times more federalist than in any European country. Each American state has its very own criminal code, property code, family code, and all other relevant laws. Each American state also has a complete and independent system of government, including a three-tiered court system and fully-fleshed out executive and legislative branches. As long as the state is operating within the (very broad) confines of its own state-level law, the federal government has essentially no power to intervene in state-level affairs.

In stark contrast to all European countries, the President of the United States has no authority to intervene in state-law prosecution or sentencing decisions (which are the vast majority of criminal prosecutions in the U.S.). None. Zip. Zilch. Thus, if Sikorski wishes to press for clemency, he'll have to address himself to his fellow Central European, California Governor Arnold 'The Governator' Schwarzenegger. And that all depends on how California law defines Schwarzenegger's clemency powers -- he may not be able to intervene until sentence has been passed, which it hasn't, as yet.

I know it's a very different system from what prevails across the Atlantic, but guess what: the U.S. is a completely independent country with a vastly different set of rules, not just a somewhat far-flung branch office of Europe!

On the merits: Yes, it was a despicable thing for Polanski to have sex with a thirteen-year-old girl, but she's forgiven him and, by all accounts, he had the bad luck to land in front of a California judge who was a shamelessly politicized publicity whore, and who was threatening to reject the plea deal worked out between Polanski and the prosecution and sentence him to an absurd 50-year sentence, just to appear 'tough' in the media. Nobody's a hero in this story, but Polanksi's decision to flee is understandable.

Comments

[Nondescript Handle]

Andrew,

"The number of legal fields that German state are permitted to independently regulate, top to bottom, on their own, is miniscule compared to the situation in the U.S."

But that's simply a trade off: the German Länder and the EU member states have retrained the sovereignty of direct involvement in the law making process on the common level.

The administrations of the Länder can veto federal law in the Bundesrat, the administrations of the EU member states can veto EU directives in the Council of Ministers.

As far as I know the US state governors and legislatives have no formal influence on the enactment of federal law. US senators are elected by the population (except of mid term replacements in some states), and are not responsible to the states as sovereign entities.

The German Länder can afford broader federal jurisdiction, because the Länder have tight reigns on the federal law.

In my humble opinion this is not so much a question of "how much power" (and certainly not to the factor of 1000 to 1), but "how is the power exercised".

[Jeffrey]

If anyone is interested, here's the transcript of the 1977 Grand Jury testimony.

You can read what happened to the 13-year-old Samantha Gailey in her own words.

*

[Andrew]

True, the President and Hillary Clinton could theoretically throw their political weight behind a pardon for Polanksi, but, as a recent Washington Post chat participant put it:

Alexandria, Va.: They want Hillary Clinton to intervene? On what planet would that be anything but political suicide?

Karl Vick [WP writer]: On Mars.

The arrest and extradition of Polanski is a cause celebre only among European government and cultural elites (mostly French ones). As Josef Joffe recently pointed out, 70% of the actual readers of the French Figaro newspaper (admittedly a pretty conservative one) wanted to see him extradited.

If Clinton or Obama were to breathe even a single word about Polanski, the U.S. airwaves would immediately be full of Republicans -- and perhaps some Democrats -- reading from the painfully graphic grand jury testimony describing how Polanski drugged, molested, and sodomized a 13-year-old girl against her protests. I guarantee you that Clinton and Obama are right now working out ingenious ways to avoid answering questions about this case. In fact, I would not be at all surprised to see both of them take public stands in favor of his extradition.

[Martin]

Well, one thing that seems to be ignored here, is that even if the POTUS has no legal right to pardon someone, he still has more INFLUENCE than anyone else in the USA. First in his own party, but also with a lot of governors. I have no idea, if that is enough in this case, but it does not seem completely stupid to try to get him and Hillary Clinton on board, if what you want is some kind of pardon for Polanski.

[zzzz]

In other news(papers), Josef Joffe speculates about Barrack Obama pardoning Roman Polanski. :D

http://www.zeit.de/gesellschaft/zeitgeschehen/2009-09/polanski-schweiz-verhaftung?page=2

[Norbert]

I just had a look at Title 18 of the US Code where I found the answer to my last question. I promise next time I'll use Google before asking silly questions.

[Norbert]

@Curtis: You wrote: "3. The American President's power is limited ONLY to the enforcement of federal law. In this respect, he can pardon anyone of any federal crime, whether it be kidnapping, rape, murder, etc. - the details of the crime are irrelevant, as long as it's federal in nature."

My question on "federal crime" would be: is there federal criminal law dealing with the offenses you mention (kidnapping, rape, murder)? My very limited understanding of the American legal system so far was that such offenses could only violate state law. If not, what would be an example of a rape subject to federal law (as opposed to one subject to state law)? Raping a federal officer or kidnapping Malia Obama?

Thanks for clarifying.

[Norbert]

Curtis, as far as your statements on the monopoly of violence in Germany are concerned (e.g. you state:"the German Federal Government as a rule maintains a monopoly of violence"), please be informed that they are wrong.

The Federal Police's tasks are very limited in Germany. The Länder have their own police sovereignty. The vast majority of the German police forces are Landespolizei who are subject to state law.

[Andrew]

Nondescripty, I never said German states were powerless (straw man!), I said they had much less autonomy than American states. That's the very problem I was addressing in the initial post: since Germany does have a federalism system, many Germans assume that all federal systems must operate the way Germany's does. This only leads to confusion when Germans try to comprehend American federalism, which devolves incomparably more authority to the individual state than does its German variant. Every U.S. state has its own independent legislature, which regulates the overwhelming majority of all legal fields: criminal law, criminal procedure, civil procedure, court organization, tort law, contract law, family law, business corporatsion law, inheritance law, land law, natural resources law, etc.: all of these things are governed first and foremost by independent state laws and literally hundreds of thousands of state-court decisions going back for centuries. That is pretty much the crucial structural difference between American federalism and the German variant. The number of legal fields that German state are permitted to independently regulate, top to bottom, on their own, is miniscule compared to the situation in the U.S.

And yes, the comparison to the EU (with the caveat I prominently listed) works like a charm -- for the limited purpose of clearing up misconceptions about U.S. federalism. I know because I've tried it many times, and it works! The proper comparison between the legal landscape in New York and New Jersey is not the legal landscape in Schleswig-Holstein and Niedersachsen, because SH and NS (as many Germans assume), because SH and NS share much more common legal source material than NJ and NY. A much better comparison is between Germany and Austria -- they share a similar legal heritage, but are otherwise totally independent. The only areas in which they are forced to adopt common regulations are with respect to EU guidelines, which are analogous to federal regulations.

Let me stress that I'm not trying to make out any system as better or worse. That's a fool's game. I'm simply combating a common misconception. And, in fact, it goes the other way: many Americans automatically apply their 'template' of federalism to Europe, and are surprised to find out how centralized European countries are. When that misconception comes up, I just use all these analogies in reverse! Like magic!

[Nondescript Handle]

Curtis,

"you do realize that by playing the buffoon, you lose all credibility, don't you?"

Sorry, but I won't return personal attacks and insults. And my arguments are restrained by reality and facts (sorry!), so I must play the clown. What else can I do?

"I've tried to stay clear of personal attacks..."

It would've been nice if you've succeded.

"...while addressing the merits of your arguments."

By making up stuff about the German constitution.

"You should try this approach sometime as I suspect that you might find it more productive."

Well, I'm trying it (show me _one_ insult of mine) and so far it produced nothing more than me being called:
- Troll (1x)
- Asshole (3x)
- buffoon (1x)
- "a rather large, empty box - big on the outside yet hollow and empty on the inside" (1x)

The irony is astounding: Ignorance of the US legal and political system is blasted in strong language, while ignorance of the German legal and political system is accepted as par for the course. I'm being called names, and get insulted when I'm reacting defensly.

[Martin]

Well, whatever else he might have written, Nondescript Handle was not the one calling someone an "asshole" here. That he got a bit picky after that stands to reason, don't you think?

[Curtis]

I've already admitted defeat, and I know your even... better at this than Jeffrey.

Nondescript Handle, you do realize that by playing the buffoon, you lose all credibility, don't you?

I've tried to stay clear of personal attacks while addressing the merits of your arguments. You should try this approach sometime as I suspect that you might find it more productive. As it is, right now you come across as a rather large, empty box - big on the outside yet hollow and empty on the inside.

[Nondescript Handle]

Andrew,

Oh, facts. That should give me a fighting chance.

"However, he also has, under Art. 96(5) of the Grundgesetz, the clemency power as to certain other offenses which were prosecuted in state-courts."

*blink*

GG 96(5) makes it possible that federal statutes give state courts jurisdiction even over those limited aspects (war crimes, genocide, crimes against the federation etc) of criminal law which are normally handled by federal courts.
It keeps the pardon rights to the Federal President though.

But all over all it empowers state courts.

Not quite sure that this is a powerful argument for the powerlessness of German states.

[Nondescript Handle]

Curtis,

I've already admitted defeat, and I know your even... better at this than Jeffrey.

"The President of the United States can indeed pardon or commute sentences for child molesters, child abusers, etc., as long as the crime relates to federal law!"

Yes of course, how foolishly of me to make the qualification of "common" only four times, thinking that would rule out federal law. I'm awfully sorry. You should make no reservations for mis constructing my intents using that.

"The Constitution carefully spells out the exact powers delegated to the federal government (military defense, a post office system, foreign relations, etc) while reserving all other matters for the state. Again, to my knowledge, neither the EU nor any member of the EU has such federalist provisions. "

You're of course right. German constitutional scholars foolishly insist that article 70 of the German constitution actually reserves all powers not specified in articles 72 and 73.

But you're obviously the better authority, so my copy of the constitution is clearly wrong.

"The only thing that is taken into consideration is whether it was a state law or federal law that was violated. If it's a state law, then that falls under the responsibility of that state's President (which we call "Governor" so as not to confuse him/her with the U.S. President). If it's a federal law, then that falls under the responsibility of the U.S. President."

I can't wrap my head around it, this is so different from the German system where the Federal President has the power to pardon inmates who have been convicted by federal courts, and state governors (which we call Ministerpräsident) have the power to pardon inmates who have been convicted by state courts.
Your knowledge of international law is humbling. Clearly we Germans haven't the foggiest idea of federalism.

"To many Americans, this would be grounds for revolution, but then again, maybe this is why Americans need to have such a strong federalist system, "a thousand times" stronger than anything that exists in Europe."

I agree completely. It was very misguided for me to think that "federalism" should have some "objective" meaning.

Clearly, "federalism is what Americans are used to" is just more impartial.

[Andrew]

Nondescripty has a point. The German Federal President has the pardon and clemency power only as to offenses which resulted in a first-instance verdict in a Bundesgericht (federal court). However, he also has, under Art. 96(5) of the Grundgesetz, the clemency power as to certain other offenses which were prosecuted in state-courts. So his powers do extend further than the American President's, although they do not extend to lower-level state-law offenses.

Which raises the interesting question: why, if their own legal system also features a President with limited powers to intervene in state affairs, do Germans not understand the American system? Vide the many news stories I read blaming President Bush for failing to pardon Tookie Williams.

The broader point holds, however. American federalism preserves much more power in the hands of individual states than German federalism does. Never claimed Germans don't understand federalism in general, of course, only that they don't understand American federalism. You wouldn't believe how many inquiries I get from German graduate students and professors and journalists asking me what the American 'Paragraph' on murder or inheritance or divorce or juries is. I've gotten dozens so far. Not to mention all the desperate entreaties for me to represent people in various of the 49 states in which I am not licensed to practice law.

[Nondescript Handle]

Jeffrey,

it's not easy for me, but I admit defeat. You're right, I was wrong.

I've foolishly used my posts for facts (sorry, I know that hurts your brain), which you've artfully dodged. You used your momentum in building an ever crazier wave of ad hominem attacks, obstructiveness, and insults. What can I say, I've no answer to that.

Only the old saying "Never mud wrestle a pig. You both get dirty -- but the pig enjoys it" gives me the hope that I may not be a total coward to flee the battle field of this hopeless flame war.

You're the victor. Nicely done, sir.

[Curtis]

In Germany:
- the federal Government (chancellor or president) can not pardon or commute sentences for common child molesters
- the state Government (Ministerpräsident) can pardon or commute sentences for common child molesters
In the US:
- the federal government (president) can not pardon or commute sentences for common child molesters
- the state government (governor) can pardon or commute sentences for common child molesters

This seems pretty similar to me.

Nondescript Handle, I'm afraid even your above comparison shows a woeful lack of understanding of the subject matter.

The President of the United States can indeed pardon or commute sentences for child molesters, child abusers, etc., as long as the crime relates to federal law! In all your rantings, you're proving Andrew's statements without even knowing, that the U.S. is indeed a thousand times more federalist than any European country.

Let's start again with some basic principles:
1. The Constitution divides power into two separate, co-sovereign entities, the federal government and the States. To my knowledge, neither the EU nor any member of the EU has such federalist provisions.
2. The Constitution carefully spells out the exact powers delegated to the federal government (military defense, a post office system, foreign relations, etc) while reserving all other matters for the state. Again, to my knowledge, neither the EU nor any member of the EU has such federalist provisions. Taking the examples of Germany and Austria, as far as I've researched, the respective "Bundesregierungen" sits on top of the power pyramid and most importantly, are in firm possession of the "monopoly of violence", while the "Bundesländer", regardless of whatever powers they might have, occupy an inferior position below. In other words, the Bundesländer of the German-speaking countries are directly subject to the Bundesregierung. This is NOT the case in the U.S. which is why Andrew remarked that the American system is a thousand times more federalist than what you have in Europe.
3. The American President's power is limited ONLY to the enforcement of federal law. In this respect, he can pardon anyone of any federal crime, whether it be kidnapping, rape, murder, etc. - the details of the crime are irrelevant, as long as it's federal in nature.
4. For state crimes, only the Governor of that state has the power to pardon or intervene. On the other hand, Governors have no power to get involved in federal crimes, therefore, once someone has committed a federal crime, they must be handed over to the federal government for prosecution, regardless of what any state government might believe.

Now there are many similarities and differences as these relate to the German speaking countries. In Austria, for example, all crimes are prosecuted on the federal level, regardless of the crime. In this case, the federal executive has unlimited power to pardon and enforce the law as he/she sees fit.

It is my understanding that in Germany however, they have chosen a model closer to that of the United States, however with far less federalism. The German Federal States also possess reserved powers however never to the same extent as American States, and always with the understanding that the German Federal Government as a rule maintains a monopoly of violence.

Without speaking for Andrew, I imagine that this is what he was trying to explain. So in answer to your original observation, when determining whether the U.S. President or the State Governor is responsible for issuing pardons or enforcing the law, the brutality or seriousness of the crime plays no role here. The only thing that is taken into consideration is whether it was a state law or federal law that was violated. If it's a state law, then that falls under the responsibility of that state's President (which we call "Governor" so as not to confuse him/her with the U.S. President). If it's a federal law, then that falls under the responsibility of the U.S. President.

These strict federalist measures also explain why the U.S. President can never reside in a state since that would create a conflict of power within the same territory (two kings living in the same castle). This is why Washington D.C. had to be created from swamp land and designated as a "district" and not a "state". So in principle, the residents of Washington D.C. lack the full protections of a state and live in a form of tyranny perpetuated by the federal government (they have no state to protect them from the whims of the federal government - here we have a complete lack of checks and balances).

The very fact that in Europe someone can be head of a federal country while simultaneously residing in a federal state of that same country comes across as grotesque violation of separation of powers or abuse of powers to Americans. You can see the same thing with Brussels, the seat of a political union being located in a member state of that same union. To many Americans, this would be grounds for revolution, but then again, maybe this is why Americans need to have such a strong federalist system, "a thousand times" stronger than anything that exists in Europe.

[Jeffrey]

Nondescript Asshole,

Ah, I see. You actually belong to that group of people known as INTERNATIONAL ASSHOLES. Yeah, you'd be an asshole whether you were born in the United States or Germany.

*

[Nondescript Handle]

Jeffrey,

"First of all, I am not Andrew. My name is Jeffrey. It's not so hard to figure out."

I have the super power to address several people in one post without using their names.
Use context: when you don't teach comparative law, and I make a comment about that it is possible that I don't refer to you. It's not so hard to figure out.

"Scot Stevenson, over at USA Erklaert, has spent more years in Germany than in the USA. Your mis characterization of his blog is stupid."

So simply living long in a country means you can make no mistakes in the representation of the legal and political system of that state?

His descriptions of e.g. the German court and law enforcement system is painfully wrong.

"Painfully" especially because he totally disregards the fact that these are _state_ matters which vary considerably from state to state, while decrying the fact that Germans disregard the differences between US states and counties.

Very much like this blog entry, which blows a gasket over the misrepresenting of the US system while misrepresenting the Germen system.

[Nondescript Handle]

Jeffrey,

"This is a misrepresentation. Andrew argued that Germans have trouble understanding AMERICAN federalism, not federalism in general."

No, Andrew implied that there is one scale for federalism, and that on this objective scale the USA is a thousand times more federalist than Germany:

"Please get this into your heads, European jouralists: American federalism is a thousand times more federalist than in any European country."

[Jeffrey]

Nondescript Handle,

First of all, I am not Andrew. My name is Jeffrey. It's not so hard to figure out. Just look at the name after "posted by" at the bottom on my comment. I don't teach comparative law.

Scot Stevenson, over at USA Erklaert, has spent more years in Germany than in the USA. Your mischaracterization of his blog is stupid.

Maybe you should change "Nondescript Handle" to "Average Troll."

*

[Nondescript Handle]

Jeffrey,

"Do you think that a "state" in the US and a "Land" is Germany are completely interchangeable?"

No, not interchangeable. There are indeed many differences, some small, some very important (e.g. National Guards, state criminal laws, the Bundestag).

But
"In stark contrast to all European countries, the President of the United States has no authority to intervene in state-law prosecution or sentencing decisions..."
is quite wrong, because both the German Chancellor and the Federal President don't have that authority either.

So your
"and that the scope of powers delegated to officials in the two countries is different enough to lead to misunderstandings when comparisons and analysis comes up."
doesn't really make sense, because in this special case the "scope of powers delegated to officials" is _not_ different.

One would thing that someone who teaches comparative law would know that.

And comparing the POTUS to the EU president? Seriously?

But I agree with you this is like "USA erklärt" where a detailed and fact checked USA is contrasted with a simplified, centralized, European-common-denominator fantasy-Germany that exists only in the mind of an expat.

[Jeffrey]

Nondescript Handle,

You wrote:

But for Andrew this implies that Germans don't understand federalism

This is a misrepresentation. Andrew argued that Germans have trouble understanding AMERICAN federalism, not federalism in general.

Did you read the TITLE of the blog entry?

C'mon.

*

[Jeffrey]

Nondescript Handle,

The basic argument is that, because of historical and cultural reasons, the political structure of the United States is different than that of Germany, and that the scope of powers delegated to officials in the two countries is different enough to lead to misunderstandings when comparisons and analysis comes up. Oder?

Do you think that a "state" in the US and a "Land" is Germany are completely interchangeable? Or "president" and "chancellor"? I think everyone here is trying to clear up misunderstandings due to the different semantic ranges and associations of terms that are often considered to refer to the same type of entity. This is basically my argument from the beginning of the discussion. Terms needs to be understood WITHIN their cultural context, and it definitely goes both ways. Americans need to understand what a "Land" is within the German political system, and Germans need to understand what a "state" is within the American context.

*

[Nondescript Handle]

Just as a recap:
In Germany:
- the federal Government (chancellor or president) can not pardon or commute sentences for common child molesters
- the state Government (Ministerpräsident) can pardon or commute sentences for common child molesters
In the US:
- the federal government (president) can not pardon or commute sentences for common child molesters
- the state government (governor) can pardon or commute sentences for common child molesters

This seems pretty similar to me.

But for Andrew this implies that Germans don't understand federalism and that the POTUS is analogous to the EU president.

Which would imply that the chancellor is analog to a governor, and that the Ministerpräsidenten are just glorified county mayors.
With the power of parole, which just shows how powerless and different from governors they are.

Strange.

[Martin]

"...people here..."
"...problem with THE central Europeans..."
"...annoying feature of so many German-speakers..."
and so on

Quite an interesting turn this blog is taking. Not sure I like it.

[Curtis]

I think the fundamental sovereign entity in the US is the State, not the Federal government. The states sent representatives to the constitutional convention to create the US constitution, which specifically enumerates the powers of the Federal Government and limits them to that enumeration.

Don, I was just explaining this the other day to some friends who were having great difficulty understanding our doctrine of separation of powers. I can't remember the exact reference, but the Supreme Court has established that the U.S. is a country of shared sovereignty, meaning that the states share equal sovereignty with the federal government. I suppose the interpretation of this doctrine affords the states and the federal government equal protection from each other, e.g. in case one decides to overthrow the other ;-)

Despite this shared sovereignty however, you can't get around the fact that it was the states that created the federal government and that afterward delegated parts of their sovereignty to it. In effect, the federal government derived its original power from the states, which means, as I've been trying to explain to my skeptical Austrian friends for 12 years now, that the term "Bundesstaat" (Federal State) is highly misleading since it suggests that American States are owned or subject to the federal government.

Perhaps it's terms like "Bundesstaat" that give German-speakers the impression that the U.S. federal government sits on top of the power pyramid with the 50 states planted firmly below. This probably explains why they also believe that President Obama can somehow grant Polanski clemency, if only he were asked nicely enough (according to an article I just read in one of Austria's main newspapers).

I fear the next round of America bashing that's bound to ensue after the State of California imprisons Polanski in some deep dark hole in the ground for 49 years and Obama "fails" to issue a pardon.

[Don]

"In contrast, Americans do not spend time complaining about Germany or Austria. In fact, Americans don't think of those countries very often.

Did you forget 2002/03?
Freedom fries, "Old (sclerotic) Europe", surrender monkeys, alliance of chocolate making countries, appeasers etc?"

Curtis is generally correct. What you seem to have missed is that the most significant response to Chirac's actions of 2002/2003 was not the ludicrous 'Freedom Fries' or the Surrender Monkey jokes. It was the boycott of French products in the US, something neither Bush or the Congress had anything to do with. The most notable victims were exporters of French wines, as sales of their products fell off between 25-30% year on year. Not sure how long it lasted, if indeed it the effects have ever ended.

I personally followed the boycott for a year. I learned to appreciate wines from Austria, New Zealand, South Africa, and Chile. I no longer boycott French wines - but my purchases are perhaps 10% of what they were.

There is an interesting recent case. A boycott of Scottish products is being promoted in the US over the release of the Lockerbie bomber to Libya. I read in one of the London papers that the producers of Harris tweeds have been forced to remove all mention of their country of origin by falling sales. One wonders about the makers of Scotch whiskey as well.

There are good substitutes for both products from Ireland.

[Don]

Bravo, Andrew. I might add one more thing (which Andrew knows the whereof better than I).

I think the fundamental sovereign entity in the US is the State, not the Federal government. The states sent representatives to the constitutional convention to create the US constitution, which specifically enumerates the powers of the Federal Government and limits them to that enumeration.

Amendments to the US constitution also proceed from the states. Either Congress or a 'Constitutional Convention" may start an amendment, but the amendment is only ratified and made law by the consent of 75% of the states (i.e. by vote of the state legislators). So in the US constitutional system I might argue that the states are the senior body.

Thus you have the curious crime of "Transporting minors across state lines for immoral purposes' (a standard feature of many crime stories of the 30's or 40's).

That is (was?) a federal statute. If an accused criminal transports the minor from Philadelphia to Harrisburg (Pennsylvania's capital city) it is not a federal offense (unless he drove into Delaware or Maryland en-route). It's strictly a state matter.

Transport the minor to Wilmington (Delaware) or Camden (New Jersey) and you may be dealing with a Federal prosecutor, also possibly local prosecutors from either or both states as well.

If Stanley Williams been convicted of kidnapping a victim in California and murdering him in Las Vegas Bush may have been able to pardon him. But likely not for the murder, only for the kidnapping & transport part. And the clemency of the President applies only to the federal crimes. Any convictions in California or Nevada would still stand.

[Curtis]

@Norbert:

I'm not a lawyer, but as far as I know about our legal system, the crime of sexual abuse of a minor is a crime against the people, i.e., the State of California, regardless of what the victim thinks or feels. Whether or not she has forgiven him plays absolutely no role in his prosecution, but perhaps her feelings might be taken into account by the judge when passing sentence. This means that Polanski's problem is with the State of California, represented by the elected executive of that state which at this time is Gov. Schwarzenegger. Only he, or his delegated state attorney, has the power to drop charges, which isn't very likely since Polanski fled the state and has been in hiding for over 30 years. Dropping charges at this point would probably be political suicide for Schwarzenegger's administration and would probably also anger many Californians.

The victim, for her part, may still seek redress in the form of a civil lawsuit, but maybe Andrew of someone else with knowledge of California's legal system could step in and inform us if that state has a statute of limitation for such civil actions.

Another point that I should mention, since I saw it written up in today's newspapers in Austria that several European government officials will be writing Obama for clemency (how absurd!), is that although the U.S. Department of Justice falls under President Obama's responsibility, it's still not his responsibility to refuse or pass judgment in a California legal matter. Once his administration receives an extradition request from the State of California, he has to see to its execution since California delegated its right to foreign relations to the federal government. This is yet another example of the beauty of American federalism at work: always separate but perfectly in sync.

@Michael: It's not technically wrong to talk about "Obama's healthcare plan" per se since as President, he does participate in the law making process by making suggestions and signing the final bill into law. However, it would be MORE technically correct to say "Congress' healthcare plan" since they are the ones who do the bulk of the legislative work and who also have the power to pass laws without the consent of the President. He, just as any other American, has the right to suggest measures and laws for the Congress to consider. Congress, on the other hand, has the right to ignore those views or turn them into law.

Furthermore, the Constitution is very clear on this matter: the main role of the Congress is to create laws while the main role of the President is to carry them out. In this light, the blame for whatever effectiveness or shortcomings of any given law should fall squarely on the shoulders of Congress.

If Europeans were so disappointed by the Patriot Act, they basically wasted their time by criticizing the Bush Administration, which was only doing its job by enforcing the law as required by the Constitution. A more effective policy would have been to send a group of lobbyists to Congress to agitate on behalf of European interests as they pertain to the Patriot Act, or to whatever else has earned their displeasure. Like it or not, this is the course of action prescribed by the Constitution.

[Michael]

I don't know Curtis. Is it wrong then to talk about "Obamas healthcare plan"? It seems like semantic nitpicking to say that "presidents don't have the power to make law". If the Bush government initiated and supported Patriot act legislation, then such a statement might be somewhat imprecise, but not straight out false.

[Norbert]

Given the somewhat bitchy tone of this discussion, I will join in and won't refrain from saying the following: by admitting that judges in California can be "shamelessly politicized publicity whores", aren't you kind of nourishing the cause of the "self-satisfied sneerers" and the "supercilious wankers"? (duck away)

To the merits of the case:

(1) How relevant - from a strictly legal point of view - is the fact that "she's forgiven him"?
(2) Is his crime or his punishment not subject to any statute of limitation?

Thanks for clarifying.

[Guido]

"Germans are simply supposed to buy tickets by honor, we learn, and they generally do. Yes, there are controllers who occasionally check to see if you bought a ticket, but for many Germans the controllers are unnecessary."

Sorry - I'm born and raised in Berlin ... but no one is buying their tickets out of "honor" ... They don't want to feel jumpy all the time and fear to get caught. Of course there is an automatism after some time - but rest asured: if people knew for a fact, that no one would be there to controll them, their "honor" would erode pretty quickly :)

[nitpicker]

Concerning presidential powers:
I can - without doing research - only compare them with the German system:
The Chancellor has indeed a very very "tame" legislature by American standards (or vice versa).
The legislature electing the chief executive makes for a very very close relationship. I personally intensely dislike this.

The Bundesverfassungsgericht the other courts, however, are largely independent and do hold power comparable to that of SCOTUS:
It can strike down any law brought before them by finding it unconstitutional. The judges hear at least as many cases in a given year as their American counterparts.
They also are "legislating from the bench": The Bundesverfassungsgericht has "invented" several new basic rights in the past decades. A prime example is the "Recht of informationelle Selbstbestimmung", which is not stated anywhere in the Grundgesetz...

[Curtis]

@Detlef: Some good points regarding 2002/2003, however I'm afraid that I can't agree. The references to Europe you hear today regarding health care reform and what happened in 2002/2003 were and are largely a rejection of the perceived failings of European socialist democracy and NOT a personal attack on Europe or Europeans themselves. Herein lies the big difference. What I and other Americans perceive here in Germany and Austria is a direct personal attack on the U.S., the American people as well as American social and political institutions. In addition, unlike the current unfavorable comparisons to European national healthcare systems, Americans are not attacking these institutions out of jealousy or insecurity (85% of Americans already have private health insurance and fear that they'll be forced to switch to an inferior government-run plan if Obama's reforms are passed), which is the distinct personal impression I've formed after living here for the past 12 years.

Besides, the American criticism of Europe is mostly a big exception and not the rule, the same of which cannot be said about German/Austrian criticism of the U.S.

Not to mention that the US President seems to be a pretty powerful government leader compared to most European government leaders?

May I suggest here that once again we're talking about apples and oranges? Taken in their own context, most European heads of government are vastly more powerful than the U.S. President is in the United States. They wield tons of power that American presidents could only wish they had, and most importantly, they don't have a hostile independent legislature (Congress) and independent judiciary (the Supreme Court) checking and opposing their every move. Furthermore, most European heads of government don't find themselves severely restrained by a constitution that prescribes a very strict separation of powers on multiple axes (within the federal government AS WELL AS concurrently between the federal government and the states). Simply put, the American president is like the king in a game of chess and you guys imagine him to have far more power than he actually has.

As for his power worldwide, I suppose the American president can't help being the leader of the free world. Being the only democratic super power, he automatically inherits this role.

[Detlef]

Curtis wrote:

If the differences are so small, then why is so difficult for so many German-speaking Europeans (I hesitated to say "Europeans" in general because I don't encounter this sort of prejudice in Scandinavia, for example) to understand our federalist system of government and how it relates to our lives?

I would suspect because that part of the USA isn´t covered that often in non-US media?
They probably tend to concentrate on the federal government because US foreign policy and trade are usually the things that influence us foreigners the most?
Not to mention that the US President seems to be a pretty powerful government leader compared to most European government leaders? Except maybe the French President?

[Detlef]

Good explanation, Andrew.

You might also mention that an adult having sex with a 13 year old is a big no, no in Germany too. While our laws are a bit more liberal than in many (all?) US states they aren´t that liberal.

I do have a slight problem with something Curtis and Jeffrey wrote though.
They do seem a bit one-sided?
(Although I agree with most of what they wrote.)

Across the pond however, I can't recall ever encountering or hearing of such anti-European or anti-Austrian/German views or attitudes.

In contrast, Americans do not spend time complaining about Germany or Austria. In fact, Americans don't think of those countries very often.

Did you forget 2002/03?
Freedom fries, "Old (sclerotic) Europe", surrender monkeys, alliance of chocolate making countries, appeasers etc?

Or the current health care debate in the USA?
Socialized medicine, rationing, waiting times etc?

Sure, in normal times "Americans don't think of those countries very often". Not that important for the daily lives of Americans.

On the other hand, denigrating Europe sometimes seems to be a useful tool for US political groups in domestic debates?
If they didn´t think that such arguments would work with a sizable percentage of Americans they wouldn´t make them, right?

[Curtis]

@Oliver: If the differences are so small, then why is so difficult for so many German-speaking Europeans (I hesitated to say "Europeans" in general because I don't encounter this sort of prejudice in Scandinavia, for example) to understand our federalist system of government and how it relates to our lives? You should read the deeply spiteful and downright nasty, if not racist statements made by too many readers of The Standard, which is supposed to be one of the most intellectual newspapers here in Austria, in the comment section of the online version. If I didn't know better, I would have sworn this stems from decades of abiding jealousy mixed with deep resentment, but at what and what for? Because of simple misunderstandings of culture?

@Andrew: I find your third approach to be the most effective, i.e., comparing the U.S. to the E.U. Many of the more educated professionals that I teach usually tend to instantly get this comparison. Unfortunately however, I seem to be waging a losing battle against the media here, headed by ORF (the national TV) and supported by the daily periodicals. Here's a typical example of what many Americans face on a daily basis:

One day several years ago while teaching an English college course, one of my students proudly presented me with a newspaper clipping on regarding Bush. He was very anxious for me to read it right away in order to get my opinion and perhaps hoping that we could make it the discussion theme of the day. I actually love it when students show that kind of self-initiative, so I picked up the article, which was from Der Standard, and started reading it.

I realized that this was another one of those tiresome articles lambasting Bush and by extension, the U.S., however after reading the first line I handed it back to the student and thanked him politely for his efforts. He looked at me puzzlingly and asked why I didn't bother finishing the rest of the article. Because I don't need to, I replied. He insisted on knowing why, so I answered, well, the article begins with "Das neue Patriotgesetz von US-Präsident Bush...", and as far as I know, American Presidents are not empowered to make law. I could see that this explanation left him fully dissatisfied, so I eventually had to launch into a lecture on the structure of the U.S. government (Alex, wish I had that article you mentioned!). I ended the lecture by asking the class how they would have reacted had the New York Times printed a scathing critique of what they consider to be Austria's xenophobic asylum laws by beginning "Austrian President Heinz Fischer's new asylum law...". Silence. Suddenly the shoe was on the other foot.

I suppose Americans are damned if we do and damned if we don't, however the best we can do here is explain the truth to one person at a time. Andrew, you might have the most important job of all since you have a large audience. Many of us really appreciate and applaud the contributions of people like you and Scot Stevenson, even if you're up against the mighty disinformation network that is the Media.

An American friend of mine once remarked that he's lived and taught all over Europe and that it's only in Germany and Austria, the two European countries that benefited the most from the decades-long generosity of American tax-payers, that he's found the most virulent hatred of all things American. Food for thought.

[Oliver]

The difference between the american and german system does not appear to be that big here.

President Koehler cannot pardon most prisoners, either. The President's right to grant clemency is limited to the relatively few cases which are decided in execution of the jurisdiction of the "Bund" (i.e. the federal level) in first instance (art. 452 S. 1 StPO). This applies e.g. for the foundation of a terrorist organisation. The Chancellor has no right to grant clemency at all.

In the vast majority of other cases, this right lies with the "Laender" (federal states) (art. 452 S. 2 StPO). In most states, it is executed by the respective prime minister of that state.

Maybe the cultural/judicial transatlantic gap is not always as big as thought.

[Jeffrey]

Andrew,

Right on cue, I saw this example of state and federal government push and pull in the New York Times a few minutes ago:

In Some States, a Push to Ban Mandate on Insurance.

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[Jeffrey]

Andrew,

Your two-pronged attack is really good (and damned funny, too). Size does matter. A couple weeks ago I was sitting in one of my old favorite kneipes in Berlin and talking about the book I was reading (Wolfgang Buescher's Deutschland: Eine Reise) when I said to my German interlocutor, "Germany is so ..." I hesitated and she said, "Large." I smiled and replied, "No, small. Compared to the United States, Germany is so small. Buescher follows the border of Germany all the way around and it really doesn't take him very long. Yes, compared to other European countries, in size and population, Germany is large. But to Americans, it is a small country." She has never been to the US, so she just nodded. The differences in scale are important.

Hey, here's a fun and illustrative hypothetical. Imagine an anti-German German who published a book called "Germans Are Still Arrogant Nazis." Now imagine that this book becomes a bestseller in the United States and Americans line up around the block to buy a copy. Imagine, also, that this guy goes on to make movies in which he focuses on Nazis in Germany and claims that they represent the average German. And then Americans flock to see his movies and leave the cinemas nodding their heads and saying, "I knew it. Germans really are arrogant Nazi scum."

Of course, it's laughable, right? And yet we have the German embrace of Michael Moore.

*

[Andrew]

I see we're all having this problem with the central Europeans.

I have two ways of addressing it, depending on whether the persons in involved genuinely wants to understand or is just engaging in the self-satisfied sneering that is such an annoying feature of so many German-speakers. The supercilious wankers get an in-depth lecture on the complexities of American history and political structure, delivered with icy condescension, and are then asked to contribute their views on the subject, or suggest a 'better' structure for the U.S.

Another thing that works well on these people is something along the lines of: "Ahh, I see that you seem to have been influenced by the mistakes and misinformation contained in reports provided by the organized mainstream media in your country. It has always amazed me how unreflectively and uncritically Austrians/Germans accept whatever their authorized news sources choose to tell them." This is what I call cultural jiu-jitsu. You take a common stereotypical cultural polarity (Americans naive/gullible, Europeans sophisticated/skeptical) and suddenly reverse it, associating Europeans with the values they have been trained to ascribe to Americans. Never fails to disorient them. For an extra knife-twist, you might add "I now see why propaganda was able to brainwash so many millions of Europeans -- with such disastrous results -- during the last century. Apparently there's still some work to do here!"

For the many who actually able to listen without prejudice, I find size comparisons enlightening. Most Europeans don't really understand how large the U.S. is. Germany is slightly smaller than the state of Montana, and you could just about squeeze 2 Germanys into Texas, and 4 into Alaska. Helps to have a visual aid showing a tiny little Germany crouching in the corner of a huge U.S.

Another approach that works well is the EU comparison. When it comes to political structure, the wrong analogy is U.S. state to Austrian or German state. That just confuses things. The better analogy is U.S. President to EU President (or EU). The American President has approximately the same amount of direct political power over state matters as the EU President has over matters internal to an EU country. Nobody would expect one EU country's laws to be just like another -- same with U.S. states. Nobody would expect the EU president to have the ability to directly shape policy in an EU state or pardon a German prison inmate -- same as the U.S. President.

This is not to suggest that the analogy works on all levels -- it doesn't -- but it does get them thinking on the right track.

[Jeffrey]

Curtis,

I am sadly all too aware of what you're talking about. Americans, I would say, are usually shocked to find out the range of prejudices against and antipathy towards America and Americans when they move to Europe. In contrast, Americans do not spend time complaining about Germany or Austria. In fact, Americans don't think of those countries very often. Thus the shock when an American arrives in Europe and is confronted with a wall of preconceived ideas about the United States. I experienced that first-hand all the way back in 1985 when I lived in Germany the first time. It's tough. I don't know how much you're going to change those Austrians who hold those views. A blog like Scot Stevenson's USA Erklaert (and Andrew's here, of course) helps because he really wants to explain the reasons behind the differences.

European ambivalence about the United States has a long history. Do your best, Curtis. Be proud to be an American. We are an ethnically-mixed, experimental country that has had a stable democracy for over two hundred years. We've struggled just like everyone else. We've also sacrificed a lot for the stability of the world. Would the Germans ever have conducted something like the Berlin Airlift for the Americans? Unlikely. American culture and history is NOT the same as Austria's and Germany's (and that's a very good thing).

*

[Curtis]

Jeffrey,

Very nicely said and I have no problem with exploring different aspects of different cultures, and I also believe that cultures should always be evaluated within their own context, however there IS a significant amount of prejudice/hatred against all things Americans as a result of misunderstandings here in Austria and Germany.

I dare to make such a bold statement because when you consider the situation, I don't know of much Anti-German or Anti-Austrian sentiments as a result of ignorance in the United States, whereas here in Central Europe, simple misunderstandings regarding the U.S. too often turn into prejudice against the U.S. And this is where I think something has gone significantly wrong here in the German speaking countries.

I've noticed that many people, both upper and lower class, spend a significant amount of time comparing Austria/Germany to the U.S., especially in the media, and whenever they encounter something which they fail to understand, prejudice quickly ensues. You simply don't find the same phenomena in the U.S., and this is what bothers me.

For example, despite the fact that Roosevelt introduced many social security benefits in the 1930's, it is common knowledge here in Austria that the U.S. does NOT have any sort of social security whatsoever. Why? Because this is what ORF, the national television station, teaches. Austrians are shocked whenever I mention Medicaid or Medicare, or whenever I mention that yes, we do have unemployment benefits. Many flat-out refuse to believe me, accusing me of fantasy. Why? Because this is what they saw on some documentary on ORF, that if you lose your job you end up homeless because we have no unemployment benefit system.

I do battle against this sort of ignorance on a daily basis, and sometimes it doesn't matter what you say or what you do, people prefer to indulge their prejudices about the U.S. Across the pond however, I can't recall ever encountering or hearing of such anti-European or anti-Austrian/German views or attitudes.

THIS is what bothers me and what causes me to lose faith in some of what you posted.

/Curtis

[Jeffrey]

Alex,

That is strange. I was typing up my response to Andrew's entry, where I mention USA Erklaert, when you posted with that link.

By the way, here's an interview with Scot Stevenson.

*

[Jeffrey]

Andrew,

This blog entry, if written in German and if one removed the personal commentary at the end, could be one of Scot Stevenson's entries over at USA Eklaert. Nicely done.

Germany and the US share many broad similarities -- both are capitalistic representative democracies with a skilled and technological workforce -- but just beneath the similarities there are many differences that are jarring for both Germans and Americans.

An American enters an U-Bahn station in Berlin and looks for a turnstile and finds none. Germans are simply supposed to buy tickets by honor, we learn, and they generally do. Yes, there are controllers who occasionally check to see if you bought a ticket, but for many Germans the controllers are unnecessary. The American tries to imagine this system employed in New York City and can only raise his eyebrows as he imagines the chaos that would ensue. Why don't Germans need turnstiles? The reasons lie deep in German culture. And the reasons for the power of individual states in the US go back to the very beginning of our country (and even before that). The 16th Amendment, of course, increased the power of the federal government, but the struggle between states and the federal government continues to this day.

The problem, as you and Curtis know, is that people tend to map their ideas and expectations from one word in their own language to the target language, but a "state" is not exactly a "Land." Each has a unique history and meaning WITHIN that country and culture.

These subtle differences run through cultural comparisons. Having lived in other countries and having gone through this more than once, I've learned to adopt some of the ideas from the anthropology (cultural relativism, in particular). The meaning of anything must be understood WITHIN a cultural context. For example, you can ship your bike to China and that physical bike will change its meaning upon arrival in Shanghai. For Americans, biking is a leisure activity that adults associate with childhood. They often have fond memories of biking as kids. For most Chinese, the bike is a mode of transportation to one's place of work and back and does not have the same associations. You will not find a Chinese getting on his bike after dinner to take a spin around the neighborhood for exercise. Same physical bike in a different cultural context and the meaning and connotations change. Similarly, in Germany, a "Baekerei" has a very different place and associations in German culture than a "bakery" does in the US.

Living in another culture brings one face to face with these differences. They are, of course, very hard to explain. It's doubly hard when, on the surface, Germany and the US seem so similar (compared to China, that is).

*

[Alex]

Curtis,

you might also read Scot W. Stevenson's awesome blog "USA erklärt", especially this post about "Die Grobstruktur der USA (oder wo man vor Bush am sichersten ist)".

[Curtis]

Thanks Andrew, for a well-needed explanation of the facts. As an English teacher here in Austria, I'm constantly barraged with puzzled questions, such as why President Bush/Obama doesn't just pardon _______ (insert current fashionable celebrity on trial). I've explained till I'm blue in the face, that the President (and the rest of the federal government) has absolutely no power or say in state matters (which account for 99% of your everyday routine), sometimes to little avail. Sometimes I get the reaction, "well then that must be a pretty stupid system" (the thud you then hear is me falling on the floor clutching my chest).

You should have been here a few years ago when Schwarzenegger declined to pardon Stanley Williams, who was eventually executed. It was nothing short of diplomatic war! Austrians were so indignant that they promptly removed "Arnie" name from the stadium in Graz named after him. "Arnie" for his part returned the ring given to him by the city. What an uproar that caused here in Austria!

No one cared for the fact that as a directly elected official of a state with a particularly direct version of democracy, Schwarzenegger was sworn to uphold and carry out the law and will of the people of California, and NOT that of Austria. Nay, they still took down his name and declared him persona non grata.

Unfortunately, the negative side of all this misunderstanding is the annoying prejudices that people here conjure up whenever they fail to understand some aspect of American culture or politics. I'm heading off to a class right now and will take a printout of this blog entry with me, for I'll undoubtedly have to do battle defending us prude, excessive and puritanical Americans.