Why we watch court

Germany’s criminal legal system casts a vast net: Millions of people are surveilled and investigated for criminal offenses each year, and ultimately approximately 600,000 cases are sentenced.¹ Despite this scale, the day-to-day work of mass criminalization is largely out of view for those not affected by it, allowing for systemic injustices to be obscured.

That people are unfamiliar with the day-to-day workings and drivers of the criminal system allows for rightwing and populist narratives of “migrant crime” to take hold, feeding false ideas about ever-increasing violent crime that justify tough-on-crime rhetoric and policy. Under these logics, all migrants are criminals and the solutions are deportation, austerity, and punishment. Critically, the political space is closed off to discuss the impacts and violence of the criminal legal system for those who are surveilled and punished, and to demand transformative solutions.

The reality is that Germany’s criminal legal system targets people from racialized and migrantized communities, resulting in untold harms for these communities. The vast majority of criminal cases (about 520,000) sentenced each year are low-level cases punished with fines for offenses like low-level theft and riding the train without a ticket, with another ​​about 59,000 punished by probation and 25,000 by prison. Migrantized groups are disproportionately punished: about 39% of sentences are against non-German citizens.² Research also shows that non-German citizens are sentenced more harshly.³

As we explore in our Racism on Trial campaign findings, based on observing over 200 criminal court cases, the criminal legal system shapes and perpetuates systemic injustices. For example, the criminal legal system criminalizes and strictly enforces poverty offenses like theft, welfare fraud, or fare evasion, using the punishment system as a response to inequality. Migrantized people are most impacted because they are statistically more likely to be lower income and are more often controlled by the police. People are also punished to enforce borders. For example, refugees are criminalized for not being able to afford basic necessities, even when this is because of legal restrictions on employment and income opportunities.

The Racism on Trial campaign aims to address these realities by making criminal courts sites of activism through collective courtwatching. Courtwatching has a long history in Germany, especially in solidarity with victims of racist policing and police violence.⁴ We build off of this history, and focus on courtwatching as a window into this system of mass punishment, as part of an abolitionist practice.⁵

We first started courtwatching as research, to understand what was happening in these systems. By watching the day-to-day work of the courts, we can see what interests are being served, who is punished and for what, and how the system generates and reinforces these systemic injustices. The result of that work are our findings, where we share our observations about the systemic and other injustices of punishment and criminalization in Germany. We also use courtwatching as an organizing tool, both by publishing our case reports as political education for others to learn and by building a community of activists engaged on these issues through collective courtwatching and dialogue. We continue to monitor the institution and generate knowledge we can use for non-reformist reform demands, and we are building more solidarity and mutual aid resources for people impacted by these systems.

It is these various goals and benefits of courtwatching as a tool of resistance that we discuss in this short primer. Your group may focus on one or more of these goals; we also share how courtwatching may be paired with other tactics depending on your strategic aims and orientation. We hope to inspire other groups to take on ending the injustices of this system, and to incorporate courtwatching as part of their practice.

Why courts?

Courts play a significant role in upholding the system we have described so far. For one, they give the injustices of the criminal legal system a veneer of legality and righteousness. Courts legitimize structural injustices by rubber-stamping convictions that criminalize poverty and perpetuate other injustices. For this reason, Berlin-based activist group Kampagne für Opfer rassistischer Polizeigewalt (KOP), which has documented racial profiling by the police for over two decades, squarely implicates the courts as part of a systemically racist system⁶. This insight is contrary to common wisdom in Germany that courts are neutral, an idea that helps to obscure the role of courts in inequities.

Courtwatching is a window into these structures.The details of what happens in the courtroom–behaviors of individual actors, their interactions with each other and the person being tried–are also significant, including because they shape experiences of structural violence for the individuals being tried. Courts are where life-altering decisions are made. As one courtwatcher in a US project suggested, to “fight the violence of jail,” it might be necessary “to go to the places where decisions are made to put people in cages in the first place.”⁷

When we observe court, much of the criminal system is out of view: Many decisions are made before cases are heard in court, depending on how police work, whether cases move forward, and so on. But as Jocelyn Simonson, an American scholar who has written about courtwatching in criminal cases explains, that so much is out of view does not reduce the power of courtwatching: “Most of ‘justice’ has happened elsewhere. . . . But to call attention to this smokescreen is to reduce its power; to bear witness to the little that is said in each case adds up to something larger. In this way, one basic goal of organizing courtwatching is to create the palpable power shifts that can flow from collective observation of those in power.”⁸

Courtwatching as a political act: Why and how

Courtwatching is a way to “reclaim courtroom spaces as part of an effort to understand the practices there, document those practices, and, ultimately, push back against their very existence.”⁹ Courtwatching can further many different purposes, and each aim may shape how your group engages in courtwatching, how it uses what it learns in court, and how courtwatching fits into its larger strategic plan. We discuss all of this below.

This guide can be read alongside our Racism on Trial Courtwatching Legal Guide section, Practical Guide: How to Courtwatch which includes additional advice on the practicalities of courtwatching, including important considerations before publishing data (including privacy concerns and consent), how to conduct yourself in the courtroom, rules around wearing/bringing political signs, and more.

1. 1. Putting racism on trial: Simply put, we do not have a lot of information (data or research) outside of impacted communities about who is criminalized in Germany, under what circumstances, and what their experiences and stories are. Courtwatch groups can start observing trials as research, to understand and reveal the systemic racism of these institutions.
   
   
   1. - If your group focuses on courtwatching as research on racism and the criminal legal system, you should think early on about how you plan to use this information in your activism, which will inform how you courtwatch. For example, we knew that we wanted to share with other groups accounts of the cases we observed so we took very detailed notes so we could reconstruct trials for a broader audience. Another idea for communicating is storytelling based on courtwatching, which can be an important tool for abolitionist campaigns to share “data” or evidence of societal injustices. For example, courtwatching can provide stories of patterns of racially discriminatory policing which impacted people and solidaristic campaigns may share and build on.
      
      
   2. - We also recommend analyzing what you have observed in court together with others, including people who are impacted by these systems, to understand what you’ve observed–which is so much more than first meets the eye.
      
      
2. 2. Reframing justice: Courtwatching reveals the intersecting injustices of these systems, analysis important to resisting these harms. For example, we have seen the ways in which migration status, gender, and poverty interact to shape people’s experiences of punishment that are very different from populist, tough-on-crime narratives around increased “migrant crime”. As Simonson writes in her book, “courtwatchers [are] able to retell the story of how the criminal system works, generating their own collective counter-narrative in which the violence of the courtroom was center, rather than the alleged bad acts of people arrested.”¹⁰ Connected to this idea is that courtwatch groups can generate narratives that distinguish between crime and harm, and that advance alternative visions for what actually addressing harm might look like, given their observations of the violence of the courts and criminal legal system.
   
   
   1. - For models for how to get your counter-analysis out there, explore other courtwatch groups and how they advance their narratives here. Approaches include immediate social media reporting on cases, press work, longer policy reports, or protest.
      
      
   2. - Structural analysis also feeds political strategy and coalition-building. By understanding root causes, we know what we are up against and who is impacted by these systems and can come together to challenge them. For example, our findings show how criminalization and punishment are not isolated issues but rather connected to Germany’s border regime, to austerity, and to ableism. By showing these relationships we can also connect movements and identify solutions that work at this systemic level, versus targeting only symptoms.
      
      
3. 3. Solidarity: In Germany’s courts, and especially in low-level cases, people are often alone. Even when supported by counsel or family and friends, having members of the public bear witness to a person’s experiences is a powerful act of solidarity, which resists the isolation of the punishment system. Beyond bearing witness, solidarity can include participatory defense¹¹; mutual aid such as identifying anti-racist attorneys and otherwise meeting needs; fundraising to pay for court and attorney costs; or skilling up so that your group can assist with applications for payment plans or community service for people who cannot pay their fines. Mutual aid may also be a building block to further organizing alongside people impacted by these systems.
   
   
   1. - Solidarity projects should be developed together with impact people and communities and avoid replicating top-down social-work models. Some components of solidarity and mutual aid should be a part of all courtwatching projects, and groups should be aware that providing direct support or developing resources (such as trustworthy referral lists) is capacity-intensive. Courtwatch groups should be realistic about what they can do and plan accordingly as they begin. In Justice Collective’s early days we started by developing a resource list for impacted people and a hotline people can reach out to if they would like us to join them for their criminal case. Our hope is that we can build additional resources over time by engaging with the needs and wishes of those impacted.
      
      
4. 4. Changing the balance of power: Courtwatchers’ presence–especially when they are open about their mission in the courtroom–shifts the balance of power in the room: “The criminal system’s actors are used to having an audience, but they are not used to being watched” and “the act of watching can be a form of wielding power.”¹² This does not necessarily mean that actors will change their behaviors, or that merely creating transparency is the goal, but power in the courtroom shifts when the actors are not allowed to continue business as usual.
   
   
   1. - Ideally, your courtwatching group includes and is driven by people who are impacted by punishment and their communities, and is in contact with the people being tried and has their permission and/or engagement in the initiative. This is the model of other courtwatching groups who observe cases of victims of racial profiling or police violence, for example.¹³ In the case of mass criminal offenses, your group should include in its strategy and priorities building with and connecting to impacted people, including connecting through community groups, informal associations, mutual aid networks, lawyers, and social workers. Your group could then attend hearings flagged for you by this network.
      
   2. - It is also possible to observe court proceedings without having this initial connection to impacted people, but if doing so, you should proceed with a lot of care, especially in how you present yourselves in court and publish information coming from your court observations.
      
      
   3. - Whether you’re in touch with the person will also shape how you behave in the courtroom. In cases where the person has requested it, as already often happens in the case of activists who are criminalized, the person may want the courtwatchers to be more active in showing their opposition to the court, its reasoning, and decision. In such cases groups may also organize protests or information stands in front of the court or otherwise make their presence more known. However, any such tactics should only be used after consultation with the person being tried (and their lawyer, if they’d like).
      
      
5. 5. Building power: As many share who have been courwatching before, there is a power and awakening that comes from watching court in a collective effort to monitor, learn, and resist. This is also the case for people who have been to court for individual cases before: There’s something different about sitting and watching many cases as they unfold in the day-to-day of the court, and then analyzing, strategizing, and acting–alongside others. Watching court together builds our collective insights into the criminal punishment system and how we can resist and work towards dismantling its facade of “justice” and replacing it with real justice.
   
   
   1. - Even for people who have personal experiences with the court system, collective courtwatching is a powerful organizing tool, as people come together to see the patterns of systemic oppression. One challenge is that courtwatching is time intensive, which is why your group may want to consider ways to include people in the experience of courtwatching who cannot actually spend half a weekday observing proceedings. Our archive is an attempt to do just that.
      
      
6. 6. Policy change: The system is also always changing and adapting to politics and law changes. In this way, regular courtwatching is an important tool to monitor racism in the courts and identify opportunities for non-reformist reforms, or reforms that do not entrench the power of the system but rather reduce its scope. At times, we may have a specific policy problem in mind as we visit court, such as monitoring the implementation of recent changes to the criminalization of cannabis use and possession.
   
   
   1. - If you’re engaging in courtwatching to monitor specific topics or to identify opportunities for policy intervention, consider your methodology upfront. For example, it may be good to have a random sample of cases, so that it does not seem like conclusions you come to are based on cherry-picked examples. You could observe cases on particular days of the week over a certain period or something similar.
      
      
   2. - Another consideration is to decide whether your group wants to directly engage with court and/or political actors, and what that means for your group. One risk is you are co-opted by the system, as it can demonstrate it is engaging with critique. On the other hand, you may be able to win real change.

Conclusion

So far, collective courtwatching is not as widespread a practice in Germany as it should be. As more groups in more communities come together to resist the power of the criminal legal system, it’s possible that the institutions will resist or try to remake themselves, appeasing criticism. We should be on the look out for such developments and think together about courtwatching as a tool of activism over time.