Criminal courts understand drug use as a personal failure rather than as potentially legitimate personal choice, or as a public health issue whose impacts on a person’s life are shaped by socioeconomic circumstances.

Judges and lawyers tend to conflate drug use, drug dependence, and criminalized behaviour, despite evidence showing that only a small proportion of people who use drugs develop dependence or other health problems, and that many people with drug dependence do not engage in any criminal activity. They also assume drug use is criminogenic. As a result, defendants may be required to prove abstinence from drug use rather than being supported to access the care they need, regardless of their pattern of drug use.

In this case, the judge finds that the defendant’s drug use may be a mitigating circumstance if he was using drugs at the time of the offenses but simultaneously criticizes him for not doing enough to “get over the drugs” presently. The court understands abstinence as required to demonstrate personal responsibility and as evidence the person will desist from crime but also does not take seriously the material barriers the defendant faces in accessing care should he want or need it, including language barriers, migration status, and cost. This omission serves to erase the state’s responsibility to make care accessible.

The judge also voices her disappointment that the defendant is back before her court; she does not acknowledge the structural factors affecting the defendant’s situation: His asylum status bars him from getting a work permit, thus limiting his income opportunities. Based on the harmful idea of enforcing abstinence, the court offers incarceration as a response to the defendant’s precarious material conditions prescribed by Germany’s asylum system.

The trial is delayed because of a scheduling issue with an interpreter. While waiting for a new interpreter to arrive, the judge and prosecutor pass the time by answering questions from a school group visiting the court. The defendant waits outside of the courtroom. His lawyer is also waiting outside but does not interact with his client. When he enters, the defendant appears physically unwell and nervous.

He faces three theft charges. The stolen items (clothing and food) were returned to the stores from which they were taken so the stores did not incur financial losses. When asked whether the defendant would like to make a statement, his lawyer responds on his behalf. The lawyer confirms the allegations are true and adds that the defendant has a history of dependence. Looking toward the judge, he continues, “While he uses drugs, I don’t think that’s his main problem—I would say it's more medical in nature.” It is unclear what the attorney means by this.

The judge begins her questioning by asking whether the defendant intended to sell the stolen items and whether the theft was connected to drug use. The lawyer responds that his client is not currently using drugs. The judge asks when the defendant last used drugs, addressing him directly. At first, he says he has not used anything since the beginning of the year. When pressed, he clarifies that while he no longer uses the specific drugs asked about on a daily basis, he occasionally uses different substances.

The judge reviews each charge to establish whether the defendant had used drugs at the time of the offense. Initially she references the dates of the alleged offenses until the lawyer asks her to include store names to help the defendant recall the events. As she continues the defense lawyer scrolls through his phone and appears uninterested. The defendant replies that he cannot say with certainty whether he had used drugs during each incident. He also does not remember two of the offenses. He disputes some facts, such as taking shampoo from one store and serving as an accomplice in another case. The court does not address these discrepancies further.

The defendant’s past record includes theft convictions, with a recent sentence of roughly a year and a half probation. The judge asks why he violated probation by committing another offense and the defendant replies it was because of his drug use.

In their closing argument, the prosecution drops some of the counts because they were already heard in another proceeding. They emphasize that the defendant remains guilty of multiple counts of theft committed while on probation and asks for a fine of almost €1,000 and a one-year prison sentence, citing a high risk of “relapsing”.

The defense lawyer responds by sharing an anecdote to argue that drug use does not always mean dependence. The implication of this is unclear. He highlights significant barriers to accessing therapy for his client, including language barriers because the defendant does not speak German and because as an asylum seeker he has limited financial support to cover treatment costs. He suggests a sentence of €50. The defendant apologizes to the judge for violating probation.

The judge sentences the defendant to 10 months in prison. She wonders aloud how the defendant could reoffend so quickly and violate probation, despite previous warnings from the court that such behavior is unacceptable. While acknowledging that the defendant is not permitted to work in Germany because of his asylum status, she says, “this does not mean you can steal here”. The judge recognizes the defendant’s ongoing drug use as a factor diminishing his responsibility but expresses doubt that he is taking sufficient responsibility to work on his drug use issues, which she believes remain a problem for the defendant, who seems to take whatever drugs are available to him. “Especially seeing that getting therapy is difficult for you, I believe you have to put more effort yourself into getting over the drugs,” she says. The judge notes the possibility of converting the prison sentence into court-mandated treatment if the defendant is able to access treatment in the future but acknowledges that the likelihood of this is low.