Criminalizing Poverty

Overview: Courts frequently criminalize poverty by punishing low-level offenses directly linked to economic deprivation, such as fare evasion or theft of basic necessities like food and clothing. Judges display little understanding of impacted people’s structural circumstances and financial hardship, instead placing full legal and moral responsibility on individuals facing criminal charges for survival tactics. This further entrenches inequality by imposing debilitating fines and prison sentences – including those enforced as Ersatzfreiheitsstrafen, where people are jailed for inability to pay fines – on the economically marginalized. For structural reasons, migrantized and racialized communities are especially vulnerable to such marginalization and dispossession.

In Germany today, more than 14 million people are affected by poverty—a number much greater than only two decades ago.¹ This means that 1 person out of 6 faces an elevated risk of being criminalized. Research suggests that over 40 % of all low-level cases in Germany sanction people for an offense directly related to poverty.² This includes, for example, people who are criminalized for theft of basic necessities or for riding the train without a ticket because they simply cannot afford the expenses. Oftentimes, this criminalization is linked to profiling practices by police or other related actors, such as store detectives or private security companies. For example, police target people affected by houselessness for low-level offenses, making them more likely to be criminalized. Yet, it also speaks to the inherent inequality of the law in a society structured through economic inequality. Or, as the French author Anatole France famously called it, in 1894: “the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread.”³

People who do not have enough money to pay a fine face imprisonment. This punishment practice is called Ersatzfreiheitstrafe, which we understand as a form of de facto debtors’ prison that should be abolished entirely. Even though it is technically possible for people who cannot pay a fine to avert imprisonment by performing certain amounts of unpaid labor, this shows how supposedly “neutral” laws affect people differently, based on their economic status. In addition, many people charged with a fine are unable to work for a variety of reasons, including health or substance use issues.⁴ While the government has not disclosed official data since 2003, it is estimated that each year, more than 50,000 people in Germany are sent to prison because they cannot afford to pay a fine.⁵

In other situations, the criminalization of poverty is more indirect. For example, when the government bars people from the formal economy by not giving them a work permit (which is often the case for asylum seekers), these people may be more likely to turn to criminalized activities like drug supply to earn a living for structural reasons. Recent reforms of the asylum-seekers’ benefits act (Asylbewerberleistungsgesetz) have implemented the so-called Bezahlkarte (payment card), leaving asylum seekers with only €50 in cash per month, making it impossible to pay lawyer fees, for instance.⁶ More broadly speaking, racialization affects the distribution of material resources on a global scale, which is also reflected on a local level: Recent research shows that people affected by racism in Germany are more likely to be affected by poverty.⁷ The criminalization of poverty is not only racialized but also gendered, since women are more likely to be affected by poverty than men, and experts have problematized the “feminization of poverty” for decades.⁸ Thus, we can see how interlocking systems of social domination—including racism, patriarchy, and capitalism, but also ableism and saneism—affect who gets criminalized for poverty-related offenses.

Our courtwatching exposes the routine ways in which the criminal legal system punishes people for their poverty.⁹ Over and over again, we see people sanctioned with harsh fines for cases of low-level theft, often involving basic necessities such as food and clothing, or for fare evasion and other offenses directly or indirectly linked to poverty.¹⁰ Such fines further entrench economic inequality, rendering some of the most precarious populations even more precarious. Judges exhibit little to no understanding of defendants’ structural circumstances, frequently turning to moralistic arguments and placing the full burden of responsibility on the defendants, as if they were poor by choice.¹¹ This deflects from the real reason that many who are affected by poverty end up in court and being punished: the injustices created by capitalism, which is deeply entwined with racism.

As numerous sociologists and political scientists have analyzed, criminalization and punishment serve instrumental functions for governments under neoliberal capitalism, acting as responses to social insecurity and modes of crisis management.¹² This means that punishment acts as an apparently simple (and relatively cheap), catch-all solution for controlling and disciplining the growing multitudes of socially and economically marginalized populations in an increasingly stratified system.¹³ Even though in Germany, the neoliberal restructuring of the state has proceeded more slowly than in the US and the UK, for instance, punishment has still been increasingly deployed as a tool to manage problems related to rising social and economic inequality, such as in the case of Ersatzfreiheitsstrafe.¹⁴ Additionally, the German welfare system took a turn towards punitivity and sanctions with the so-called Hartz reforms, which is further entrenched under the new system of Bürgergeld, as activist organizations like Sanktionsfrei make clear.

Within this context, it is crucial to recognize that criminal courts in Germany routinely punish the poor for their survival tactics. This is the result of an interconnected system that isolates, dispossesses, displaces, surveils, polices, and punishes particularly those that do not produce significant value for the system and are thus structurally rendered surplus. Courtwatching as a strategy works to expose this system, break the isolation, and build power to organize against it.