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Paper short abstract

Debtor's prisons in Germany are much older than often assumed. Tracing legislative landmarks from 1871-2025, this paper traces the persistence of this carceral technique. It reveals how windows for abolition were closed by "humane" reforms that paradoxically entrenched this punishment of the poor.

Paper long abstract

Debtor's prisons, or: incarceration for lack of payment of a fine (Ersatzfreiheitsstrafe), constitute Germany’s most frequent cause of incarceration, yet they remain marginalized in academic discourse. Whenever Ersatzfreiheitsstrafe (EFS) is talked about, misconceptions are widespread. To address this gap, this paper examines the corpus of legislative amendments and laws from 1871 to the present, tracing carceral logics of this punishment of poverty, mapping the tension between windows for abolitionist alternatives and the actual persistence of this technique of power, which has been described as "unkillable" (Boegelein).

Contrary to the misconception that EFS is a Nazi-era relic, the analysis reveals a 150-year continuity of converting debt into confinement. The genealogy highlights historical windows where non-carceral paths were conceivable and criticism was widespread—from Weimar-era concepts to the Covid-19 moratorium. However, the legislative record demonstrates a stubborn perpetuation of this carceral technique. The latest reform from 2023, which merely halved sentences, exemplifies how the state re-legitimizes the criminalization of the poor rather than building social justice within the legal justice system. While framed as humane, reforms have paradoxically entrenched the criminalization of poverty, e.g. by introducing or upholding the "net-income principle" and removing payment grace periods, thus perfecting the bureaucratic mechanism of "punishing the poor."

Ultimately, this contribution provides a foundational overview of a class-based penal system. It demonstrates how carcerality operates through administrative law to manage surplus populations, identifying the closed windows of the past as vital lessons for the current abolitionist struggle against the intersection of racial capitalism and punishment.