Case 31
| Case Number | 31 |
| Charge | Theft |
| Defense Attorney Present | Yes |
| Interpreter Present | Yes |
| Racialized Person | Yes |
| Outcome | Fine |
A young man who was unhoused and jailed pretrial is sentenced to pay €750 in fines for theft of food, toiletries, and other small items. Although the court acknowledged his substance use and poverty, the judge finds that the defendant should have simply “said no” to drugs. The sentence came with a warning that any future offense would lead to incarceration.
The court’s assessment of the defendant’s drug use is in line with a “war on drugs” approach. Rather than understanding drug use as a potentially legitimate personal choice or connected to structural factors (such as poverty and access to healthcare), drug use is deemed an improper moral choice that should be punished. Both the judge and defense attorney suggest that prison is a deterrent to future wrongdoing.
While the court portrays the €750 fine it imposes as lenient, it is anything but. Instead of access to housing or healthcare, which the defendant needed, he received a monetary sentence he likely cannot afford. If he does not pay, he will be jailed. Punishment does not address the structural factors but rather exacerbates their effects.
The defendant is accused of theft from multiple supermarkets in Berlin. Before the formal start of the trial, the judge and defense attorney discuss whether a fine or probation would be an appropriate sentence. The defense attorney says that he visited his client in pretrial detention and that he admits to the charges. He explains that the items taken were intended for personal use, not for resale, and that the defendant has no income. Theft for intended resale carries a stiffer penalty. His client was experiencing houselessness and had been using drugs for some time. The defense attorney explains to the court that despite these challenges his client is now doing well: He has lined up a job for when he is released and will be able to live with his father. The lawyer is hopeful that given these factors his client is unlikely to reoffend, suggesting a lower sentence is fitting.
The judge asks when the defendant’s substance use began. The defense attorney replies that his client began using drugs “because of a friend” about a year and a half ago but is no longer taking drugs. A legalistic discussion between the judge and prosecution follows. No one keeps the defendant in the loop about what is being discussed and the judge says it would be too complicated to explain.
The prosecution says the defendant’s confession and the low value of the items should be considered in his favour. They acknowledge the defendant’s financial hardship and his substance use issues as mitigating factors. On the other hand, the defendant’s prior convictions, which were recent, count against the defendant. The prosecution requests a sentence of €750.
In response, the defense attorney argues that this was the defendant's first experience with pretrial detention and that the negative experience will prevent his client from future offenses. He asks for a lower fine. The defendant apologizes to the court and says that he will not reoffend.
While the judge deliberates on a sentence, the defense attorney speaks with the defendant, explaining that he must pay the fine or he will be jailed (so-called Ersatzfreiheitsstrafe). He also explains that he can do community service instead of paying and can get a payment plan.
The judge imposes a fine of €750, which he considers lenient, adding, “You said a friend persuaded you to take the drug. You are an adult man and should be able to say ‘no’. This should be a lesson for you.”
Cases from our archive
Case 34
A man faces trial for stealing a small quantity of food and alcohol. In cases involving drug use, courts often want to hear that people facing trial have stopped using drugs, are working, or otherwise trying to fit into society. While the defendant ticks all these boxes, and the judge seemingly acknowledges punishment will be counterproductive, she sentences him to a high fine anyway, ending by saying, “Those are the consequences of committing a crime. You should have thought of that at the time.”
Case 33
A man with precarious residence status and substance use issues is convicted of shoplifting items valued under €40. The court imposes a fine of almost €2,000 for theft with a weapon. Despite the judge’s hesitation about whether there actually was a weapon involved, she goes along with the prosecution’s recommended sentence, with serious financial implications and possible migration consequences for the defendant.
Case 32
After spending three nights in pretrial detention, a man faces accelerated proceedings on theft charges for stealing goods valued at about €50. He is sentenced to seven months prison as the prosecutor and judge see his repeated theft offenses as evidence not of his life challenges but rather the need for a harsh sentence. Joined by the person’s attorney, all seem to believe the best place for treatment is in prison.
Case 30
A man is tried for stealing clothing. Because of his past criminal record from years ago, the court argues that the man is “falling back into familiar habits” by stealing. Despite acknowledging his substance use issues as contributing to his earlier theft charges and his current difficult personal circumstances, the court imposes a high fine and orders restitution.
