Daniel is one of 415. People are sitting behind every door in Building A of Plötzensee Prison because they were unable to pay a fine.
Photo: nd/Florian Boillot
Daniel does not remember his arrest. The police had picked him up at an S-Bahn station with over three per mille, when he woke up in prison his alcohol level was still around 2.2. That’s what the 38-year-old, who doesn’t want to appear in the newspaper with his full name, said at a press conference on Wednesday in the Plötzensee prison. Since the beginning of September, Daniel has been in house A – with over 414 other prisoners who are serving a so-called alternative prison sentence in Berlin. All in all, Daniel has to spend 100 days in prison, even though he was not sentenced to prison but to a fine. Because the substitute imprisonment takes effect when people are demonstrably insolvent and instead have to pay with their freedom.
The Justice Senator Lena Kreck (left) invited on Wednesday to get an idea of the prison and the practical meaning of substitute imprisonment. Up until and including May last year, this practice had been suspended to prevent outbreaks of coronavirus in overcrowded prisons. The only postponed penalties are now leading to a backlog of imprisonment and rapidly increasing numbers again. From 151 cases in 2021, the number has almost tripled so far, 90 percent of the available places are occupied.
In the coming days, Kreck wants to campaign for a reform of paragraph 43 of the criminal code in preparation for the conference of justice ministers. There are many arguments against the current implementation of substitute imprisonment: it is expensive, because every day of imprisonment costs around 225 euros, it is unfair because it is aimed at people affected by poverty, and it is difficult for some people to avoid it.
There are several steps that can avert incarceration. In this way, payment in installments can be agreed or the fine can be settled through “free work”. But people who have a serious illness, who do not speak German or who cannot be reached due to homelessness often fall through the cracks. “The clientele brings with it multiple problems,” emphasizes the head of the branch, Dr. Cool. Addiction disorders and other mental stress were part of the order of the day. In some cases, people would not even expect to be incarcerated: if the report was made a long time ago and a conviction is made by means of a penal order procedure in the absence of the accused, the convicted person could find himself in a »custody shock« situation. “They are torn from their covers,” says Kühl. That could mean losing a place in a dormitory, and even a private apartment would not be maintained by the job center forever.
A survey at Plötzensee JVA also shows that it is the underprivileged and marginalized sections of society that end up in prison for minor offences: around 40 percent of those in prison are homeless or homeless, more than two thirds have no work, and a disproportionately large number are not German. The majority of criminal offenses involve so-called fraudulent performance, i.e. driving without a ticket. This is where Kreck wants to start and remove fraudulent activity from the penal code. Kreck is critical of a reduction in the number of penalties to an administrative offence, as the federal government is planning. “In the end, that would also be a fine, but it cannot be worked off.”
On the other hand, she welcomes other ideas from the federal government: the number of days that have to be served as a substitute for punishment should be halved. If someone is sentenced to 40 daily rates, that would be commuted to 20 days imprisonment. Kreck also suggests using an examination body to determine whether people are actually guilty and whether there is a case of “unfair hardship”.
Mitali Nagrecha these changes do not go far enough. As spokeswoman for the Justice Collective, she has been pointing out the unjust practice of substitute imprisonment for years. “The reform proposals so far are really disappointing,” said Nagrecha. “Even one night in jail can do lasting damage to you.” As long as the paragraph is not abolished, she believes that the state senator must do everything possible to impose as few alternative prison sentences as possible. “She’s the head of the public prosecutor’s office, so she should give clear instructions as to which offenses should not be prosecuted.” For example, a general decree already ensures that the public prosecutor’s office stops investigating a drug offense if a maximum of ten grams of cannabis are found.
But Kreck doesn’t want to get involved in such solutions, “the magic word here is: separation of powers,” says the senator. A law cannot be permanently circumvented by the executive, since the judiciary must be held responsible. In addition to legal reform, she also considers a social approach to be urgent. However, she refuses to suspend the substitute prison sentence again due to the crisis – that would only postpone the sentences again.
