The impact of the “Agenda 2010” reforms launched by the Red-Green coalition at the beginning of the century has permanently damaged the country’s political culture and social climate. The labour market has been deregulated, the welfare state has been dismantled, a tax policy has been implemented that has brought more wealth to the rich and more poverty to the poor, and has also made it clear to the middle class that their decline is possible at any time. The stronger React their fears of relegation, disappointment and powerlessness to the weaker.
The whole is accompanied by distrust of fellow human beings. When one sees that the state discovers everywhere a security problem, which must be defused with Martial operations of the security forces, then the perceived threat is experienced in real life and called for the even stronger state. It is necessary to oppose those who have nothing more than a punishing and disciplining state and to demonstrate a strong state to people with fears of relegation and large assets.
The area in which the punishing state has been showing a particularly tragic continuity for decades is the punishment of petty crimes committed by the poorer people. The typical crimes of poverty are usually punished draconically, usually with heavy fines. If they cannot be paid, the persons concerned usually have to face alternative freedom penalties.
When prisoners managed to escape from Berlin’s Plötzensee prison (Roachensee) at the beginning of 2019, the issue of replacement sentences for prisoners of conscience also came into the public domain. At that time, 102 men were serving a substitute sentence in the institution, 69 of them for obtaining benefits, and they repeatedly used public transport without a Ticket. They were then sentenced to a fine, but could not or did not want to pay it and therefore had to start the imprisonment.
At the end of October 2018, a 59-year-old prisoner had died in the Werl prison (JVA Werl). He had previously had an argument with judicial officials. In this context, it became known that the man in Werl had to serve a substitute sentence of 100 days and succumbed to sudden cardiac death after the physical confrontation with prison officials.
Both cases demonstrate the inadequacy of this punishment, which places people in incredible stressful situations, also because minor crimes such as driving under the influence do not usually require a mandatory defense, so that the accused persons are on their own.
The replacement freedom penalty is usually imposed after typical poverty offenses, it is in German criminal law according to § 43 of the criminal code in its current conception and its practical application an instrument of discrimination against people with low income and wealth.
An irrecoverable fine is then usually replaced by a custodial sentence. One day’s sentence is equivalent to one day’s imprisonment. The minimum amount of the replacement penalty is one day. In concrete terms, this means that if someone has been sentenced to 30 daily sentences of 15 euros and is unable to pay them, he must be jailed for 30 days.
This is highly problematic from a constitutional point of view. Because the Fine originally imposed by the court (judicial) is converted into a custodial sentence without judicial cooperation by the public prosecutor’s office (executive). No check is made whether the Person is insolvent or unwilling to pay.
Such a practice is in conflict with the separation of powers according to article 20, paragraph 2 of the basic law. The people concerned, who are usually not legally trained, who have been sentenced by the court to pay a fine and who may have learned in the oral opening the reasons why the court does not grant a custodial sentence, cannot understand that the public prosecutor can still order the deprivation of Liberty because of the non-payment of this fine. Because the substitute freedom penalty is not mentioned in the sentence formula and the reasons for the sentence.
This practice is particularly harsh on people who cannot afford a lawyer and who do not have a duty to defend themselves, and the natural person’s need for legal protection no longer applies here.
Burden of judicial budgets
In autumn 2018, 1,120 people in North Rhine-Westphalia were sentenced to a non-parole period, most of them for driving illegally. This resulted in around 56 million euros per year for the state treasury. These costs led to some movement in the discussion about the replacement sentences. But the obstruction of justice by the petty offenses is also a reason, because more than one in ten criminal sentences in NRW currently concerns these offenses.
While the Opposition in the Landtag no longer wants this form of access to a service to be regarded as a criminal offence, but as an administrative offence, the minister of Justice insists that those affected should be given the opportunity to pay off their sentence in small amounts or with a time delay. In doing so, he also wants to prevent that there will be no more alternative sentences and the judiciary will be exonerated.
Replacement sentences for poor people
In practice, replacement freedom sentences are mainly imposed on destitute, unemployed or people who have been repeatedly charged.
In the future, it is necessary to tackle poverty crimes more intensively with welfare state measures instead of with deprivation of Liberty. In any case, from the point of view of rehabilitation, continuous, professional social support makes more sense for those affected than a measure that deprives them of freedom.