Most striking in this case was how readily the judge sentenced the person for the more serious charge of theft with a weapon, despite their own hesitation. We learn that the defendant is not alleged to have used or shown a weapon but is convicted of the higher charge because police found a multitool knife in his backpack when searching him upon arrest. In cases like this, we have observed that judges assess whether the person could have reached the weapon. They seem to understand any possibility that this may have happened, however unlikely or impractical, as enough to justify a harsher sentence for theft with a weapon. As in this case, courts exercise their discretion to impose the weapon enhancement in ways that surely stretch what the law intends.

Here, in our view, the sentencing enhancement is a tool by which the court can arrive at the harsh sentence they wish to impose because of their negative assessment of the person’s substance use. While drug use during an offense may be a mitigating sentencing factor (because of reduced culpability as a result of this changed mental state), patterns of offenses driven by drug dependence or other problems related to drug use (as understood by the court) leads courts to assume the person will not stop using drugs and therefore will keep offending. That’s a lot of assumptions–and never does the court consider systemic factors that may contribute to the person’s repeated criminalization, including their precarious migration status.

The judge begins by asking about the defendant’s personal situation. He is unemployed and is not permitted to work in Germany under his migration status (Duldung) but expresses hope that changes in the future. He is being charged with stealing items valued less than €40 by carrying the goods out of the store in a plastic bag without paying. Rather than a simple theft charge, the defendant is being charged with theft with a weapon, a more serious offense, because police found a multitool knife in his backpack when he was searched.

Asked if he wishes to speak, the defendant responds that he did not intend to steal. Without directly replying, the judge says that stealing with a knife always makes the sentence harsher. The defendant contests that a knife was involved in the alleged theft, explaining that on the day in question it was attached to a loop inside of his closed backpack and was never taken out.

Seemingly losing patience, the judge says, “You know what, you have past offenses, including prison sentences. These kinds of goods often get stolen to be sold. I do not believe you. You have to acknowledge openly that this was a theft.” She goes on to ask the defendant whether he is currently using drugs. He explains that he has been in opioid agonist treatment for the last months, before which he used significant quantities of drugs daily, including at the time of the offense. The judge encourages him to continue treatment, now in a calmer tone. 

At this point, the judge turns to address the prosecutor, saying that she is unsure whether the theft with a weapon charge is substantiated. The court calls the police officer who arrested the defendant as a witness on this point, though a different officer searched the defendant. He testifies that theoretically the defendant could have gotten the knife from the bag. The judge inspects the knife and invites the witness to do the same, and points out that such a tool would take some time to deploy if it’s in a backpack. The witness agrees.

After the witness leaves, the judge reads out the defendant’s past offenses, adding that she understands his repeat offending to be connected to his problems related to drug use. (Charges in the last years included drug-related ones and counts of riding the train without a ticket). In response, the defendant says that he has not committed theft recently and that he is actively paying off past fines. The judge reminds him that if he does not pay, he’ll be jailed (Ersatzfreiheitsstrafe).

Unmoved by the judges’ hesitation on the weapons enhancement, the prosecution argues that the knife could have been accessed by the defendant, and so the charge sticks. As a result, the prosecutor suggests a fine of nearly €2,000. The judge appears to be reacting negatively to these arguments as the prosecutor goes on to say that though the defendant did act, according to the prosecutor, under the influence of drug dependence (Suchtdruck) and confessed, these mitigating factors were outweighed by his prior convictions.

The judge accepts the prosecution’s sentencing recommendation. The defendant now owes almost €2,000 on top of his outstanding debts. The judge mentions that the fine could also be “paid” through community service, perhaps at a cultural organisation with which he may have a connection. The hearing ends with the judge reminding the defendant to stay in treatment and urging him to stop stealing, saying “I hope to never see you again”.