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German top court tells two states to pay prisoners better

June 20, 2023

Germany's constitutional court has ruled that the going rate of less than €3 per hour for prisoners in two German states is inadequate.

Close-up of a German prisoner operating a circular saw, with sparks coming off the metal as he works. Shot taken from behind the subject, whose face is not visible.
Most German prisoners are obliged to work during their time in prison, a scheme designed to aid reintegration into society and potentially to learn new skillsImage: Uwe Anspach/dpa/picture-alliance

Two German prisoners have won cases in the country's highest court, arguing that they were not being fairly paid for the work they did as inmates. They hail from Germany's two most populous states, North Rhine-Westphalia and Bavaria, their case opened early last year.

Why do German prisoners work, and why are they paid? 

Most German prisoners serving criminal sentences are obliged to work, assuming they are fit to do so. The idea is to promote reintegration into society, and potentially to teach new skills that might be saleable on leaving jail. 

But they also must be compensated for their work. Individual German states tend to have authority in such matters, not the federal government, so systems and payment rates can vary considerably.

The figures tend to be low on the basis that the inmates do not pay tax, their main expenses like food and board are covered, and because creating the jobs is not always a purely for-profit venture.

The presiding judge said that inmates in the two states were typically paid between €1.37 ($1.50) and €2.30 per hour. By comparison, Germany's minimum wage for most people is €12 per hour.

A young man standing in front of five large boxes of bloackboard chalk sticks, sorting the chalk by color and putting them in the boxes
The judge warned that prison labor with remuneration inmates deemed to be unfair could trasnmit a negative message about legal work payingImage: Julian Stratenschulte/picture alliance/dpa

What did the court rule? 

The court did not declare a fair rate of payment, saying this would be a decision for the legislature, but said such decisions should be made.

It laid out several options, including a much lower but tax-exempt "net" payment system or a more typically taxed form of payment at higher rates. 

Doris König, who chaired the panel of judges, gave governments until the end of June 2025 to come up with a legally binding proposal. She said that the "appropriate recognition" states should provide inmates for their labor could in theory take several forms. 

"This does not need to be honored only in money, but can be composed of a combination of monetary and non-monetary components," König said, suggesting that social security payments could be made on their behalf, ready for them leaving prison, and even cited the possibility of offering to take days off a prisoner's sentence in exchange for services rendered. 

Prisons will not, however, be required to provide any retroactive compensation for time previously worked at lower rates and the existing laws can stay in force until replacements are ready, the court ruled. 

Minimum wage doesn't apply to you

Perceived unfair payment could send negative message, judge warns

König and the court said the onus was on the two states to come up with stated purposes and goals of using labor in prison as a reintegration tool and a payment scheme that are not "contradictory," deeming the current systems to be "not consequential or without contradiction in their own rights." 

She also said that these goals ought to be attainable and fair about the circumstances of the work: "In other words: the attainment of the targets put forward in law cannot be unrealistic, considering the low pay for prisoner labor." 

König warned it was important to keep in mind how prisoners themselves felt about their payment and treatment. She warned that a prison labor system perceived to be unfair by inmates could end up damaging resocialization efforts, not promoting them. 

A lawyer representing the prisoners' trade union in Germany, Manuel Matzke, had similarly argued that the current system "only sends the message that work does not pay." He advocated paying prisoners the minimum wage.

The constitutional court made one past ruling on prisoner labor pay in 1988, deeming it to be too low. The response to that ruling was to raise the baseline recommendation from 5% to 9% of the mean income of all German employees paying into a healthcare scheme.  That figure is currently close to €39,000 per annum, or a little less than €20 per hour assuming full time work and 40-hour weeks.

However, this ruling was made before reforms in 2006 that granted more powers to Germany's individual states, and after those changes, the decision has rested with regional governments instead of the federal government as it once did. 

msh/jcg (AFP, dpa, Reuters)

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