Election Analysis: Germany’s political parties on policing and criminalization
Responses to questions posed to the parties by Netzwerks Abolitionismus and Hydra suggest a growing understanding by some parties of the harms of punitive social policy but comprehensive and bold solutions are lacking.
In advance of the German elections on 26 September, two German groups posed questions to the political parties on their views about criminalization, punishment, and prisons.
The Netzwerks Abolitionismus is a project coordinated by Prison Archive [Strafvollzugsarchiv]. The group released a “Manifesto for the abolition of penitentiaries and other prisons from the German perspective” in 2019. The document has since been signed by over 90 academics, activists, and others. You can find their full list of questions to the parties and answers here.
Hydra is a Berlin-based organization that has “been campaigning since 1980 for the legal and social equality of sex workers with other gainfully employed persons, are committed to improving the living conditions of prostitutes and fight against their discrimination and social stigmatization.” (translated from German). You can find their full list of questions to the parties and answers here.
Summary
Below we highlight the parties’ positions on decriminalization or otherwise shrinking the criminal legal apparatus. We also add some background as context for the parties’ responses.
Overall, while the parties make some promising points, none of parties, even on the left, talk about the overall picture of the misdemeanor system: tens of thousands of people face criminal sanctions for poverty, including for low-level theft and fare evasion. Non-Germans are disproportionately sanctioned. And no party talks about how Germany has very little judicial check on policing power: the system lacks almost any procedural protections. In fact, the conservative parties call for even more “efficiency”. While some of the parties talk about ending the policy that jails people for failing to pay a fine, this change comes very late in the criminal process, after people have suffered from the stress of high fines.
The proposals say nothing about more serious offenses, racial disparities, or pretrial detention. The parties are tepid on exploring real community-based alternatives to punishment.
Background on decriminalization in Germany
There is an ongoing—though faint—debate in Germany about decriminalizing some low-level offenses, including drug possession and fare evasion. These are only two offenses, and therefore the discussion on decriminalization does not fully address overpunishment in the misdemeanor system.
What decriminalization means also varies, with ideas that include full legalization of the behaviors, changing enforcement patterns, or converting the criminal offense into an ordinance violation. At best, decriminalization should mean full legalization and also replacing punishment with non-punitive societal supports: For example, rather than punish fare evasion, states should make public transportation free. Further, research shows that administrative sanctions are not a solution because they disparately impact low-income people and can have serious consequences, including negatively impacting people’s credit. Ordinance rules also continue to stigmatize the behaviors.
On the issue of punishing sex work, Hydra explains, the pandemic increased the stigmatization of sex work, with some calling for more criminalization in the form of “purchase bans”, a policy change that would negatively impact sex workers themselves.
Finally, one other reform on the table to shrink the system in Germany is to stop jailing people for failing to pay fines on low-level criminal cases. Approximately 8 – 14% of fine cases end in the person being unable to pay and being sent to prison. As stated above, this is a critical and impactful change, but more needs to be done.
What the parties say on decriminalization
CDU: The CDU prioritizes increasing efficiency in the system. Efficiency is not justice. The party does not support drug legalization. They also reject eliminating jail as a consequence of not paying a fine, citing issues with repeat offenders. The focus on repeat offenders is questioned by activists and scholars—past offenses increase current sentences so that people are trapped in an ever-harsher cycle of punishment, often because of other problems. Instead of finding solutions the state punishes.
FDP: In weighing in on whether decriminalization makes sense, the FDP focuses on how much cases are a financial burden for the system—prioritizing efficiency over justice. They seem to, however, come out in support of legalizing possession of marijuana. The FDP also says that they do not support the criminalization of sex work, including sex purchase bans.
Greens. The Greens are most open about drug decriminalization, which likely appeals to their urban voter base. They also reject efforts to further criminalize sex work and call for the abolition of jail for non-payment of a fine.
Linke. The Linke supports decriminalizing fare evasion. This is very important given fare evasion is 7-8% of all criminal cases and because about 7,600 people per year go to prison for failing to pay fare evasion fine. The Linke is also very clear that it does not support any efforts to criminalize sex work, including sex purchase bans. The party also wants to end incarceration for failing to pay fines.
SPD. The SPD does not support the decriminalization of marijuana use and fare evasion. Where they support some efforts to decriminalize, they call for converting the criminal offense to an administrative one. The SPD does not call for the criminalization of sex work and rejects a sex purchase ban. However, they are less unequivocal on this and suggest the need to retain some parts of a much-criticized “Prostitution Protection Act” that, among other requirements, requires sex workers to register with local government.
Vision
The parties were also asked about their overall vision and openness to alternatives to punishment such as transformative and restorative justice. With the exception of the Linke, the parties’ responses suggest a lack of real willingness to think boldly about eliminating the harms of punishment and prison.
CDU. The CDU does not support these alternatives and calls for faster proceedings.
Greens. The Greens call for “evidence-based policy.” Often such rhetoric means protecting the status quo—a set of often punitive policies for which there is little evidence.
Linke. The Linke indicate that they are dedicated to shrinking the criminal punishment system.
SPD. They punt, saying the criminal system should be rehabilitative, and also that the system is also not really the federal government’s business.
Justice Collective will continue to monitor as the parties begin coalition talks.