Demands for non-reformist reforms to the criminal legal system 2025

(You can download a PDF of the demands, with citations, here.)

Every year, over 600,000 people are punished by the criminal legal system. The vast majority of cases are sentenced with fines and are for offenses such as riding the train without a ticket, theft, fraud, and drug- or migration-related offenses. When people cannot pay their fines, they are jailed for Ersatzfreiheitsstrafe, affecting about 56,000 per year.

This system of criminalization and punishment disproportionately affects people from racialized and migrantized communities due to systemic factors rooted in economic and social hierarchies. Police racially profile, contributing to the system’s bias. Poor people are also disproportionately impacted as they face charges for so-called “crimes of poverty” such as riding the train without a ticket or theft.

Populist narratives around high “migrant crime” mask the real injustices of the intersection of criminalization and migration: People with migration backgrounds are more often criminalized because of structural injustices, and more harshly punished.¹ Criminalization and punishment lead to debt, job as well as housing instability, and other negative consequences.

These realities are inhumane and need to be ended. The parties should incorporate our proposed policy changes in their platforms and work towards real change, starting now.

Abolish Ersatzfreiheitsstrafe: For a truly “historic” reform, the Bundestag must abolish the poverty penalty² of Ersatzfreiheitsstrafe. The reform passed by the Bundestag in July 2023 under which people spend half the number of days in prison leaves in place the reality that tens of thousands of people continue to be jailed each year for their poverty.³

Lower fines: Reforms passed in July 2023 that require judges to consider people’s subsistence level when setting fines have been ineffective as fines remain unaffordable. Judges routinely impose 15€/day for people receiving Bürgergeld, or almost all of their daily income. Judges should end their practice of charging high fines. § 40 StGB should also be amended with clearer guidelines so that judges cannot continue business as usual. People with lower incomes have very little (1-3€/day)—or no—money to spare given social benefit amounts are well below necessary. Lowering fines can mitigate the harms of the system but will only be effective when paired with the more transformative solutions we demand here as well.

End migration consequences of criminal convictions: The Bundestag must decouple criminal and migration law so that criminalization does not lead to migration consequences. The Bundestag can start with the following law changes that would impact people facing low-level offenses. First, we observe every day in court how interpretations of § 46 StGB (Principles of Sentencing) disadvantage racialized and migrantized people. Judges impose harsher sentences because of people’s migration status, including because they are unable to work or do not speak German. § 46 StGB should be amended to address this systemic discrimination. Second, under current guidelines, people with Duldung face negative migration consequences if they have criminal sentences totaling 50 days. This means that two low-level poverty offenses can harm their chances of staying in Germany. These and similar guidelines that enlist the criminal system to facilitate the unjust practice of deportation must be abolished.

Stop the blanket holding of non-citizens in pre-trial detention: 60 percent of the 12,000 pretrial detainees in German prisons are non-German citizens, though non-German citizens make up 30 percent of all defendants. In 95% of cases, judges cite “flight risk” as a reason to hold people pretrial. While the law requires specific facts substantiating that an individual will flee, in practice, judges make assumptions about non-citizens, including based on stereotypes about their places of origin or simply because the person has connections to another place. Current German judicial practice also fails to adhere to recent guidelines by the European Commission that warn specifically about the overapplication of “flight risk” to detain non-citizens.

End racial profiling by police and private security and abolish so-called kbOs: Every day, people are criminalized as a result of racial profiling by police or private security (such as transit authority or retail store security). Security authorities rely on vague justifications and little evidence to discriminatorily stop racialized and migrantized people. Police concentrate enforcement in self-designated crime “hot spots” (so-called kriminalitätbelastete Orte or kbOs) in migrantized and racialized neighborhoods. These racist practices must end, starting with abolishing KbOs and the increased police powers that come with them, legislating against discriminatory controls by private security, and supporting the development of alternatives to police responses, for example in cases of mental health emergencies.

Decriminalize theft: Through the mass punishment of theft—approximately 53,000 cases per year—the state prioritizes private businesses interests over the material interests of those in need and punishes people for their poverty. As we see in court, people are most often found stealing food or other necessary items.⁴ The Bundestag can couple decriminalization with measures to ensure people receiving benefits have enough to afford a life of dignity.

Abolish summary proceedings (Strafbefehl): Low-level cases are sentenced by summary proceedings, meaning that people are sentenced by mail. They may never have the chance to contest the allegations against them: They may never receive the summary proceedings, or not receive it on time; they may not understand the appeal process; they may face language issues; and people rarely if ever have the assistance of counsel. The use of summary proceedings violates the European Charter of Fundamental Rights as well as the spirit of the procedural rights directives of the EU. Summary proceedings are a key tool that perpetuate our current system of mass punishment of low-level offenses. Without them, the system could not sentence so many cases a year. They also allow for racial profiling to remain hidden as cases are not brought to trial where wrongdoing discriminatory practices might be exposed.

Abolish fast-track proceedings (beschleunigtes Verfahren): Low-level cases may also be sentenced via so-called fast-track proceedings, which provide fewer procedural protections to people than trials. In some jurisdictions, this means that people are held pretrial on low-level offenses.⁵ Fast-track proceedings should also be abolished as failing to uphold the German Constitution and the European Charter of Fundamental Rights.⁶

End austerity policies that disproportionately target migrantized and low-income communities: Changes to criminal law and procedure should be coupled with an end to austerity measures such as sanctions and other punitive measures in the benefits system, the new Bezahlkarte scheme, denying asylum seekers and other recent migrants benefits and/or the right to work, and more.

Address the weaponization of criminal charges against victims of policing: So often, victims of racial profiling or police violence are criminalized with charges like resisting arrest or assault. These charges silence criticisms of law enforcement and have serious consequences when the person accused is racialized and/or a non-German citizen, as is the case for many arrested in the context of Palestine solidarity, for example. This must end.

Oppose the ongoing expansion of police powers and other repressive measures against migrantized communities: Of late, calls for the policing and punishment of young Arab men in particular, supposedly in the name of safety, are increasingly deployed for political reasons. For example, this recent resolution passed in the Bundestag externalizes anti-semitism–a deeply German problem- shifting the blame entirely on racialized communities. The resulting increased policing and punishment of migrant communities contributes to the demonization of these groups as a threat. The ever-present capitulation to tough-on-crime harms all of us in democratic society.