German High Court Finds Low Prisoner Wages Unconstitutional
Quietly, the Second Senate of Germany’s Federal Constitutional Court made history on June 20, 2023, in a ruling that found laws capping compensation that prisoners receive for work in two German states violate the Basic Law for the Federal Republic of Germany, the country’s constitution. The Court held that the portions of the Bavarian Prison Act and the Prison Act of North-Rhine Westphalia setting prisoner remuneration for work while incarcerated in those states are incompatible with the “social reintegration” of prisoners, which prison programs are required to seek under the Basic Law.
Two unnamed German prisoners confined in Bavaria and North-Rhine Westphalia filed suit in their respective state courts challenging the amount they were compensated for their work while confined. One worked in the prison print shop and the other as a cable cutter. In both states, penal codes set prisoner compensation at just 9% of Germany’s “basic wage,” which is calculated from the average wage of all German citizens under the pension insurance scheme, similar to Social Security in the U.S. That amounts to a daily wage of about €12.00 ($13.10 USD), or €1.50 ($1.65 USD) hourly. Both prisoners’ cases were dismissed by the state courts as unfounded and eventually made their way to the Federal Constitutional Court.
As the Court explained, Germany’s Basic Law states that the purpose of criminal detention is the social reintegration of prisoners. “The constitutional requirement for resocialization obliges the legislature to develop an effective and coherent resocialization concept based on the latest scientific findings and to implement this with sufficiently specific prison regulations,” the Court wrote. In the context of prisoner pay for work, the state legislatures must enact laws that “show prisoners the value of regular work for a future independent and crime-free life in the form of a tangible advantage.”
However, the Court noted, remuneration need not be solely monetary. State legislatures may, for example, enact laws that compensate prisoners in part by reducing their sentences or providing other meaningful benefits aimed at resocialization. Yet “even if the recognition is not only in money but also in the form of non-monetary benefits,” the Court continued, “it must have the character of a countervalue for the work performed, which is also immediately recognizable for the prisoners.” That is, whatever compensatory measures state legislatures choose must ensure that prisoners “see gainful employment as meaningful in order to provide a livelihood, [and not to] hinder their willingness to do regular work and thus their resocialization.”
With these basic principles in mind, the Court determined that the Bavaria and North Rhine-Westphalia penal codes related to prisoner remuneration violate the Basic Law’s requirement of resocialization. Paying prisoners only 9% of Germany’s basic wage is entirely inconsistent with the concept of resocialization because it does not adequately value a prisoner’s labor, especially when considering other laws that encourage or require prisoners to financially compensate crime victims, to provide support for their children, and also contribute to other costs of incarceration. The Court therefore ordered both states to enact new laws consistent with its decision and based on current, scientific research that adequately compensates a prisoner’s labor by no later than June 30, 2025. This compensation may be both monetary and non-monetary, so long as whatever compensation is awarded adequately values a prisoner’s labors based on current social science. The Court also determined that the changes need not apply retroactively. See: BVerfG, Judgment of the 2nd Senate of 20 June 2023, 2 BvR 166/16 and 2 BvR 1683/17.
Additional Source: The Federal Constitutional Court, Press Release No. 56/2023 (June 2023)