German government coalition agreement: What does it say about the criminal legal system and anti-racism?
Below is a summary of what the SPD-Greens-FDP coalition agreement, released yesterday, says on policing, punishment, and anti-racism. Where possible, Justice Collective has included some background so that the proposals can be understood in the broader context. This post can be read along with this one that reviewed the party platforms on these issues.
Policing
The agreement does not commit to ending racial profiling, the construct of “clan criminality”, or hotspot policing—all of which have disparate impacts on racialized groups—as steps towards reducing inequities and over-policing. Instead, the coalition agreement further entrenches the idea of clan criminality.
Without explicitly speaking about rightwing extremism within the federal police, the coalition agreement speaks about the need for changes in recruitment, including increasing diversity, as well as increased training and education so that human rights are democracy are strengthened. They also discuss increasing Parliament’s ability to oversee the federal police. All of these changes focus on attempts to increase accountability; very little is said about fundamental change.
Criminalization
With the exception of committing to some form of legalization of marijuana purchasing, the coalition agreement does not promise any other reduction in criminalization. The parties include in the agreement broad language about using criminal punishment as a last resort, and about re-reviewing current criminal laws, but it is unclear what this refers to.
The proposals on marijuana sales may be insufficient because they do not address possible racial and other inequities in who will continue to face punishment for cannabis-related offenses, including in the supply chain. People will continue to be criminalized even if there is some legalized distribution. The agreement also does not speak to justice for people who have a record for past offenses related to possession or distribution.
Further, the agreement does not end punishment of other offenses, including fare evasion, which has been in the public debate. Decriminalizing fare evasion would have been the lowest hanging fruit—the parties also do not speak about free access to public transportation.
Graphic explaining how the sentencing of fare evasion results in unaffordable fines, and eventually prison.
Total fines are calculated by multiplying the number of units (corresponding to the seriousness of the offense) by an amount the person has to pay per day given their income. A person receiving public benefits in Germany (Hartz IV) can expect to pay between 150 - 400 euro for fare evasion.
Sentencing: fines and incarceration
The agreement says the coalition is currently “revising the system of sanctions, including alternative custodial sentences, detention and probation, with the aim of prevention and socialization.” The reference to alternative custodial sanctions is about jailing people when they do not pay a fine—so far the parties have only committed to “revising”. This punishment has very much been in the public debate, and only the Greens had previously indicated they were committed to eliminating this sanction. It seems they were unable to get this in the coalition agreement. This is despite the fact that every year about 50,000 people are jailed because they did not pay a fine, and research shows that people do not pay because they cannot afford to do so.
Criminal Court Procedural Protections
The parties speak about “making criminal proceedings even more effective, faster, more modern and more practical, without curtailing the rights of the accused and their defense.” While they do seem to recognize the implications for the defense, the issue in Germany is very often that the proceedings are too efficient, as detailed in this report. Here are some quotations from judges and prosecutors about how they prioritize moving quickly in setting fines, which account for almost 85% of German’s sentences.
One example of how accuracy and justice are sacrificed for speed is that although judges and prosecutors are supposed to set fines according to how much the person can afford to pay, they rarely investigate enough to truly know the person’s financial circumstances. Instead, to make cases go faster, they guess how much the person makes and set the fine accordingly. It is therefore not surprising that so often people are unable to pay—and suffer serious consequences, including prison, as a result.
Finally, the parties talk about providing “defense of the accused from the beginning of the first interrogation.” This means that people should be granted access to counsel. What is less clear is if they will be charged for the attorney. Further, under current law, people being sentenced to fines do not have access to free counsel. This is a huge gap because if they later can’t pay a high fine, they are jailed.
Data
Finally, the agreement commits to improving criminal legal system statistics, in coordination with the states. This is very necessary. Today, there are often gaps in data, including information about how many people spend time in prison each year because they could not afford a fine. Another issue is that we do not have race/ethnicity data so that we can understand who is punished, for what, and how severely. This is important because, for example, research shows that non-Germans receive harsher sentences in Germany’s criminal legal system. However, many grassroots groups have concerns with the government keeping such data so instead of keeping such data themselves, the government should commit to working with impacted people and grassroots groups to facilitate community-led data gathering and analysis.