Abstract
In Germany, prisoners are obliged to work during their imprisonment in most federal states. However, prisoners currently receive very little remuneration for this work. For two decades, this remuneration has stagnated at a low level or even decreased in some federal states. In a landmark ruling on 20 June 2023, Germany's highest court, the Bundesverfassungsgericht (BVerfG, Germany's Federal Constitutional Court), recognised that the remuneration in two federal states is unconstitutionally low. As a result, for the first time in 25 years, the remuneration of prisoners will now change and – hopefully – increase significantly.
The problem of low prisoner remuneration in Germany
In Germany, work during imprisonment is compulsory in 12 out of 16 federal states (Bundesländer). This usually involves physical or manual work. If prisoners refuse to do the work, they must expect disciplinary measures. This compulsory work by detainees during imprisonment is the only form of forced labour that is constitutionally possible in Germany. In principle, the prohibition of forced labour pursuant to Art. 12 Abs. 2 GG (Grundgesetz, Germany's constitution) applies, but detainees in the penal system are explicitly exempted from this prohibition under Art. 12 Abs. 3 GG. 1 The products that the inmates produce or the services they offer are either used in the correctional facilities (Justizvollzugsanstalt (JVA)) themselves and other state authorities, or also sold on the free market.
However, the work of the detainees is hardly remunerated. Hourly wages range from EUR 1.15 to EUR 2.69 (as of 2024), depending on the federal state and the type of work. This is far below the minimum wage of EUR 12.41 gross (as of February 2024) that applies in Germany in the free labour market.
This low remuneration has a variety of negative effects on the inmates, both during imprisonment and in the time after release. During imprisonment, inmates urgently need meaningful amounts, not only to satisfy personal needs, but also, for example, to financially support relatives outside of prison or for compensation payments to the victims of the offences. However, such payments by the inmates are only conceivable at all with sufficient financial means. After imprisonment, the financial situation of most prisoners is poor. With the low remuneration, it is hardly possible for them to save meaningful amounts to get through the transitional period. Likewise, existing or new debts incurred due to the offence (court costs, lawyers' fees, compensation payments, etc.) cannot be significantly reduced, so many inmates leave prison virtually penniless or (still) in debt, which can make a new start difficult. 2 In addition, there is a high risk of old-age poverty, especially in the case of longer prison sentences, since neither meaningful savings can be built up from the remuneration, nor are contributions paid into the state pension insurance system.
The benefits that prisoners get from their work are therefore small. They are obliged to perform the work assigned to them without receiving anything objectively significant in return. Nevertheless, the remuneration issue has been at a standstill for decades, despite the problems associated with the low remuneration and the criticism of the remuneration level 3 that has already been voiced in academic discourse. Now the BVerfG has found a violation of the constitutional requirement of resocialisation. For the first time in 25 years, a change and increase in prisoner remuneration is likely to be within reach.
Variations of prison labour in Germany
In Germany, prisoners can be called upon to work in various ways. Both the prisons themselves and private third parties can set up businesses within the prison and employ the prisoners there (so-called Eigenbetriebe or Unternehmerbetriebe). It is also possible, provided that the prisoners are personally suitable, to employ them in business premises outside the prison (unechter Freigang or echter Freigang). 4
Prison run enterprises
The vast majority of inmates are employed in prison run enterprises (Eigenbetriebe). These businesses are set up and maintained by the prisons themselves. The spectrum of services and works provided is wide, but mostly limited to simple manual operations such as car repair shops, carpentry workshops, locksmith shops, laundries, tailor shops, bakeries, print shops or garden centres. 5 The products that the inmates produce or the services they offer are either used in the correctional facilities themselves and other state agencies, or are also sold on the open market. 6
Privately run enterprises
In addition, there are a large number of privately run enterprises (Unternehmerbetriebe). Just like the prison run enterprises, they are located within the prison, i.e., the inmates do not leave the prison. However, ‘
Unternehmerbetriebe are set up and operated by external third parties on their own account while the prison merely provides the premises. 7
Work on Day Release (Freigang)
Provided that the inmates have the personal suitability required, i.e., reliability, they can also be assigned work outside the prison in a company of an external third party, i.e., the inmates leave the prison in the morning and return there at the end of the working day. This form of work thus takes place in Work on Day Release (Freigang). With regard to the employment of the detainees, a distinction must be made between ‘genuine release’ (echter Freigang) and ‘non-genuine release’ (unechter Freigang). The two variants are similar in their outward appearance, but differ with regard to the classification of the working detainees under labour law. The possibility of assigning a job in ‘non-genuine release’ does not differ in its design from an activity in a privately run enterprise in prison. The only difference is the concrete place of work, which is inside the prison in the case of a privately run enterprise and outside the prison in the case of ‘non-genuine release’. In contrast to this, in the case of work in ‘genuine release’, an employment relationship within the meaning of § 611a Abs. 1 S. 1 BGB (Bürgerliches Gesetzbuch, German Civil Code) comes into being. Inmates leave the prison to work for external employers and under regular conditions corresponding to the free labour market. For this reason, remuneration is subject to the same principles as any other employment relationship in the free economy. When prison labour is mentioned in the following, the sub-form of ‘genuine release’ is therefore not included.
Remuneration of prison labour in Germany
While prison labour has a centuries- or millennia-old history not only in Germany but in many countries around the world, the entitlement of prisoners to remuneration for this work is relatively recent.
Remuneration according to the standards of prison law
Detainees are not entitled to the minimum wage. In German labour law, with a few exceptions, there is an all or nothing principle: 8 essential labour law protection norms of German labour law only apply only if the employee status according to § 611a BGB 9 is affirmed. 10 This also applies with respect to the minimum wage (§ 1 MiLoG (Mindestlohngesetz, Minimum Wage Act)). However, prevailing opinion rejects the employee status of working prisoners based on the conclusion of a contract under private law. 11 The Bundesarbeitsgericht (BAG, Federal Labour Court) also rejected the status of working prisoners as employees in its decision on this issue, 12 which is still authoritative today, on the grounds that they are subject to a special relationship of force under public law as a result of their imprisonment. 13 Therefore, no legal relations under private law can arise between the working prisoner and the prison authority.
The remuneration of working prisoners has thus been based solely on prison law. In all federal states, monetary remuneration is paid based on a basic level of remuneration, which is multiplied by different factors depending on the type and difficulty. In some federal states, a non-monetary remuneration component is also granted in the form of additional days off. Since the federalist reform of 2006, however, the overall picture has become increasingly inconsistent with regard to prisoner remuneration, due to the federal states’ laws on the penal system, including remuneration regulations, which have been enacted in the meantime. The amount and composition of remuneration can therefore vary significantly depending on the location of incarceration.
Development of the remuneration for prison labour
Introduction of the prisoner remuneration
The entitlement to remuneration for work during imprisonment was first created in 1977, when the Bundes-Strafvolllzugsgesetz (StVollzG, Federal Prison Act) came into force. 14 Before this statute was introduced, a work reward (Arbeitsbelohnung) could be paid, but the inmates had no legal claim to it. 15 The innovation was intended to make prisoners aware of the value of honest work for the time after release. 16
For the calculation of the remuneration, the system of fixed ‘basic remuneration’ and various ‘remuneration levels' was created by the statute, according to which the monetary remuneration is still determined today. The basic remuneration (so-called Eckvergütung) is based on the average remuneration of all persons insured under the statutory pension insurance scheme. 17 Pursuant to § 200 Abs. 1 StVollzG a. F., the basic remuneration was 5% of this reference figure. Subsequently, the work was classified into one of five remuneration levels according to type and difficulty in accordance with § 43 Abs. 2 Satz 1 StVollzG a. F. in conjunction with § 1 StVollzVergO (Strafvollzugsvergütungsordnung, Prison Remuneration Ordinance) and the basic remuneration was multiplied accordingly by a certain factor (75%, 88%, 100%, 112% and 125%).
The judgement of the BVerfG on 1 July 1998 18
It was not until a decision by the BVerfG in 1998 that the remuneration concept was revised. The Court ruled that the remuneration level at that time violated the resocialisation requirement pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG. Work done in prison could only be effective as a means of resocialisation if it was also adequately remunerated. Overall, the remuneration had to be suitable to show the prisoner the value of gainful employment for a future life free of punishment. The Court considered the remuneration provided for at the time to be too low for this purpose. 19
Increase in remuneration through § 200 StVollzG n. F
In response to the BVerfG ruling, 20 the amount of prisoner remuneration was changed for the first time more than 20 years after its introduction. The already existing monetary component was slightly increased by raising the basic remuneration from 5% to 9% of the reference amount according to § 200 StVollzG n. F. (neue Fassung, new version). In addition - probably as a result of a reference by the BVerfG to this possibility 21 - a non-monetary remuneration component was introduced with § 43 StVollzG n. F. According to this norm, 22 inmates may get paid time off from work for one day for every two months of consecutive activity. Provided they are personally suitable, prisoners can apply to be allowed to spend this free time outside of prison or for it to be counted towards the prison term at a later date so that they can be released earlier.
This new regulation was reviewed by the BVerfG in 2002 in respect of its constitutionality. 23 The Court came to the conclusion that the total remuneration was constitutional, but made it clear that, firstly, the regulation was at the lower limit of what was constitutionally permissible and, secondly, that this was also only valid at the time of the decision and required constant review.
Changes in remuneration in individual federal states after the federalism reform 24
As a result of the Föderalismusreform I (Federalism Reform I) in 2006, the competence to regulate the prison system, and thus also prisoner remuneration, fell within the competence of the federal states. Since then, the type and amount of remuneration have changed in some federal states due to the creation of their own laws
Changes in the monetary component
All federal states have retained the monetary remuneration component in the form of the basic remuneration of 9% of the reference value. 25 However, individual federal states have now introduced different remuneration levels, 26 with which the basic remuneration must be multiplied. In Rheinland-Pfalz 27 and Mecklenburg-Vorpommern, 28 the lowest remuneration level was lowered from 75% to only 60% of the basic remuneration. In Brandenburg 29 and Hamburg, 30 there are now only three remuneration levels instead of the previous five, but, overall, they remain within the framework previously set by the StVollzG and StVollzVergO. In Hamburg, the remuneration is also increased slightly after a few months of training at the workplace. 31 The situation is similar in Sachsen-Anhalt, where the five remuneration levels were initially adopted (with the exception of a 3% higher remuneration in level V right from the start), but the remuneration increases slightly after three months of work. 32
The level of remuneration thus depends to a large extent on the federal state of incarceration, as each federal state has its own regulations in this regard, resulting in different levels of remuneration. The range at the lowest remuneration level is 60% 33 to 88%, 34 and at the highest, 125% 35 to 141% 36 of the basic remuneration. In 2022, would have resulted in hourly wages of between EUR 1.15 (60%) and EUR 1.68 (88%) or EUR 2.39 (125%) and EUR 2.69 (141%).
Changes in the non-monetary component
In Brandenburg, 37 Rheinland-Pfalz, 38 Saarland, 39 Sachsen, 40 and Sachsen-Anhalt, 41 the non-monetary remuneration has been abolished completely. In Schleswig-Holstein, 42 on the other hand, the non-monetary component was increased to two days for every two months of work, and in Berlin, 43 Bremen, 44 Hessen, 45 Mecklenburg-Vorpommern 46 and Nordrhein-Westfalen, 47 to two days for every three months of work.
Conclusion: Dependence of prisoner remuneration on the regulations of the federal state of imprisonment
As an interim result, it can be stated that prisoner remuneration has only been rooted in the German legal system for a few decades. Nevertheless, the level of remuneration has not only stagnated for over two decades, but has also differed, in some cases significantly, among the individual federal states (Bundesländer) since the Förderalismusreform I in 2006.
The landmark ruling of the BVerfG of 20 June 2023 (2 BvR 166/16, 2 BvR 1683/17): Prisoner remuneration in Bayern und Nordrhein-Westfalen as a violation of the Resozialisierungsgebot (resocialisation requirement) pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG
The BVerfG received two constitutional complaints from (former) prisoners regarding the amount of prisoner remuneration. Specifically, the regulations of the federal states of Bayern (Art. 46 BayStVollzG) and Nordrhein-Westfalen (§§ 32, 34 StVollzG NRW) were under review. A third complainant from Sachsen-Anhalt had initially also objected to the remuneration there (§ 64 JVollzGB I LSA), but withdrew his complaint. Thus, the BVerfG only had to decide on the standards for prisoner remuneration in Bayern and Nordrhein-Westfalen. 48
The decision of the BVerfG
In its judgment on 20 June 2023, 49 the BVerfG ruled that prisoner remuneration in Bayern and Nordrhein-Westfalen is unconstitutionally low. The remuneration regulations in these federal states violate the constitutional resocialisation requirement pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG. 50
The constitutional resocialisation requirement pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG, as a yardstick for the level of remuneration
The modern penal system in Germany is characterised by the resocialisation requirement (Resozialisierungsgebot). This is also anchored in constitutional law, namely, in Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG. In this respect, the resocialisation requirement is not explicitly mentioned in the constitution, but the BVerfG has developed the right of prisoners to resocialisation from a combination of the fundamental rights in Art. 1 Abs. 1 GG, human dignity; 51 and Art. 2 Abs. 1 GG, general freedom of action in the broad sense. 52 As the bearer of the fundamental right to human dignity and the fundamental rights arising from it and guaranteeing its protection, every convicted offender must be given the opportunity to reintegrate into the community after serving their sentence. 53 This results in the constitutional obligation of the legislature to orientate the penal system and all of its measures towards the resocialisation of offenders. 54 It grants prisoners a corresponding subjective right to resocialisation. This means that prisoners should be given the ability and the willingness to lead their own responsible lives. They should be able to assert themselves in the future under the conditions of a free society without breaking the law.
However, this does not commit the legislature to a specific resocialisation concept. It does not have to design the penal system according to precise specifications. It merely has to develop an effective and coherent resocialisation concept that corresponds to the state of the art. On this basis, it has a wide scope for shaping this concept. In Germany, the legislators assume that the capacity to lead a law-abiding life after release depends, to a large extent, on the fact that the inmates pursue gainful employment, as this gives them the financial means to experience an independent life and a certain personal development, and that by pursuing a job they also integrate into a society where gainful employment is a normal part of life. By working during imprisonment, prisoners should become or remain accustomed to doing gainful work, and also acquire or maintain the necessary skills they will later need for gainful employment after release. If, as is currently the case, the legislator makes work part of its resocialisation concept, it must meet the requirements of the resocialisation principle.
The suitability of work as a means of resocialisation depends on the level of remuneration. 55 Work during imprisonment can only contribute to resocialisation if it receives appropriate recognition. This is done through remuneration, which must be suitable in its entirety to ‘demonstrate to the prisoner the value of regular work for a future self-responsible and crime-free life in the form of a tangible advantage for him’. 56 The prisoners must be shown, by the amount of remuneration, ‘that gainful employment is useful for establishing a livelihood.’ 57 In 2002, 58 the BVerfG recognised the remuneration concept under review at the time as a dynamic lower limit. The legislature had ‘still maintained the extreme limit of a constitutionally permissible reference value’, 59 and §§ 43, 200 StVollzG n. F. were ‘still constitutional’. 60 However, the BVerfG emphasised that this only applied to the time period in question. In doing so, it took into account, among other things, of the economic situation and national debt at the time as relevant balancing factors. Under the circumstances at the time, the BVerfG considered the chosen level of remuneration to be ‘still justifiable at present’, 61 but called on the legislator to constantly review it. 62
No distinction between compulsory and voluntary work
Compulsory work has not been abolished in any of the federal states whose remuneration regulations were up for review by the BVerfG in 2023, 63 so an explicit decision on the admissibility between compulsory and voluntary work in the assessment of the amount of remuneration was not to be expected.
Correctly, the requirements of the resocialisation principle do not differ in this respect. In 2015, the VGH Rheinland-Pfalz (Rhineland-Palatinate Administrative Court) ruled that the state constitutional resocialisation requirement placed lower demands on the remuneration of voluntary work than on the remuneration of compulsory work. 64 According to the Court, it is simply impossible for voluntary work not to be regarded as meaningful, since only those inmates who consider it meaningful under the given conditions accept the offer of work anyway. 65 However, in a decision from 2015, 66 the BVerfG indicated that the same requirements apply to compulsory and voluntary work in prison. At the oral pronouncement of the ruling in 2023, 67 the Court restated this view before the ruling was read out, and - probably given the expected adjustments in the other federal states not directly affected by the ruling - pointed out that its ruling did not only apply to compulsory work, but also to work undertaken voluntarily. The Court's view is to be supported. Compulsory or voluntary nature of work only provides information about the reason for taking up the work. However, the values and knowledge the work imparts when it is done are independent of this. Work that is taken up voluntarily but not adequately remunerated is also likely to disillusion and frustrate workers, and to distance them from the goal of resocialisation.
The reasoning of the BVerfG
In its judgment of 20 June 2023, 68 the BVerfG ruled that the remuneration regulations in Bayern and Nordrhein-Westfalen violate the constitutional resocialisation requirement pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG. 69 In summary, the remuneration of the inmates is too low to meet the constitutional resocialisation requirement.
In this assessment, the purposes that the remuneration of the inmates is supposed to serve, according to the legislature's resocialisation concept, are particularly important. The amount of the remuneration must be calculated in such a way that these purposes can also be realistically achieved.
When setting the amount of remuneration, the legislature must balance the many interests to be taken into account. These include, alongside the interests of the inmates in a correspondingly high level of remuneration, financial considerations on the part of the federal states and considerations of the prison system with regard to its feasibility and security. The BVerfG expressly stated that the prisoners' own perception of the remuneration must not be disregarded because the feeling of not being sufficiently valued in their work can have a counterproductive effect on their resocialisation. In this regard, the BVerfG stated that work in prison is only an effective means of resocialisation if the work performed receives appropriate recognition. It prepares prisoners for working life on the outside above all if it is remunerated. However, the BVerfG clarified that such remuneration does not necessarily have to be of a monetary nature, but can also be non-monetary. As examples of possible non-monetary remuneration components, the BVerfG mentioned, as in its earlier ruling from 1998, 70 the establishment of a social security entitlement or assistance with debt repayment. 71 In any case, the recognition must represent a countervalue for the work performed that can also be directly experienced by the prisoners. Otherwise, there would be a danger that prisoners, who see themselves as exposed to an order in which the connection between the work demanded of them and an appropriate (fair) wage is in principle broken, would be reduced to objects of state violence. 72 The type of recognition must in any case be suitable to demonstrate to the prisoner the value of regular work for a future responsible and punishment-free life in the form of a tangible advantage for them.
In the view of the Court, the level of prisoner remuneration in Bayern and Nordrhein-Westfalen does not meet these requirements. In both federal states, the concept of respective resocialisation is not coherent and free of contradictions with regard to the amount of remuneration and the purposes to be achieved with it.
On the one hand, prisoners are required to compensate for the damage caused by their crime. In addition, they must provide for dependants and start paying off debts. On the other hand, both prison laws provide - to varying degrees - the contribution of prisoners to the costs of imprisonment and health services, and the contribution of the federal states to unemployment insurance, which go beyond the former regulations of the StVollzG. In view of the low monetary remuneration, which has remained at 9% of the reference figure since 2001, and in 2022 amounted to an hourly wage of EUR 1.37 and EUR 2.30, it is not clear how the legally defined purposes are actually to be achieved by the prisoners without them being paid more. In addition, in both federal states there has been no evaluation or scientific monitoring of the effects of work as a treatment measure and its remuneration. According to the BVerfG, this does not meet the constitutional requirements. If the legislature has developed a resocialisation concept, it is obliged under the resocialisation requirement to obtain current scientific knowledge and, if necessary, to improve its concept in order to keep it in line with the constitution.
The challenged norms on prisoner remuneration thus violate the resocialisation requirement. The regulations will nevertheless remain in place until a new law is passed, at the latest by 30 June 2025.
Effects of the decision
The legislatures of the two federal states directly affected, Bayern and Nordrhein-Westfalen, have until 30 June 2025 to regulate the level of prisoners' pay anew and in accordance with the constitution. However, there will be no retroactive increase, i.e., payment of higher wages for prisoner work performed in the past.
No retroactive increase
The BVerfG has stated that, in the interest of reliable financial and budgetary planning, legislators are not obliged to retroactively create a remuneration regulation that complies with the constitution.
New regulations in Bayern and in Nordrhein-Westfalen by 30 June 2025
The legislators of the two states, i.e., Bayern and Nordrhein-Westfalen, now have the mandate to regulate anew prisoner remuneration by 30 June 2025. The legislators have a great deal of leeway here.
It is clear, for example, that monetary and non-monetary remuneration components will continue to be permitted, i.e., the legislature is not obliged to remunerate prisoners purely financially, but can also introduce other so-called ‘non-monetary’ incentives as remuneration components. In this regard, the BVerfG has determined that resocialisation through work is only possible if the work as a whole is appropriately valued and the inmates are made aware that their work has value. The remuneration - no matter how it is composed in detail - must therefore have a noticeable compensation value for the work done by the inmates.
The BVerfG does not have the task of providing a concrete figure, so it does not have to determine how high monetary remuneration must be in concrete terms. However, it has determined that the current hourly wages are not sufficient to meet the resocialisation requirement. According to the BVerfG, the new regulation must therefore leave more for the prisoners than previously. How high the remuneration must be in concrete terms is not clear from the BVerfG's ruling. However, the Court mentioned a few points of reference in respect of what should be realistically possible with the remuneration, namely, for example, the repayment of debts, the compensation of victims of the offences and the support of dependants. On the other hand, other interests and factors that may have an influence on the amount of remuneration may and must also be taken into account. The BVerfG cited, as examples, the purpose of the concretely performed employment; the qualification level of the work; the remuneration of comparable activities on the free labour market; the typical conditions and restrictions of the penal system, in particular the generally lower productivity of prison labour; the additional costs of prison labour for business enterprises; the competition from other production possibilities, including from abroad; the general situation on the labour market; and the levying of a contribution to prison costs.
Taking all these points into account, Bayern and Nordrhein-Westfalen now have until 30 June 2025 to regulate the amount of prisoner remuneration in accordance with the constitution.
Effects on all other federal states
Formally, the ruling only applies to Bayern and Nordrhein-Westfalen, but it can be assumed that all other federal states have also followed these proceedings very closely. In most of the federal states, the regulations on prisoner remuneration are very similar to those that were specifically reviewed in these proceedings. For this reason, it is very likely that a corresponding review would also discover corresponding deficiencies in these other federal states, and that the regulations would be declared unconstitutional. Moreover, the BVerfG - as already indicated in 2015 - has so far emphasised, at least verbally, that its statements on the appropriate level of remuneration apply both to compulsory work and to work undertaken voluntarily. 73 For this reason, the decision is equally important for federal states with and without compulsory work. It is therefore likely that not only Bayern and Nordrhein-Westfalen, but also the other federal states will now review their respective regulations on prisoner remuneration and also adjust them upwards. 74
Compatibility of the remuneration in the other federal states with the resocialisation requirement pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG
On the occasion of the most recent ruling of the BVerfG and the changes in the amount of prisoner remuneration to be expected in the near future in the other federal states as well, it is worth taking a forward look at the regulations there. 75 In the following, we will therefore briefly examine whether the regulations in other federal states are also unconstitutional, and whether an adjustment and increase can therefore also be expected there in the near future.
Federal states with lowering of a component without replacement
In its decision in 2002, the BVerfG accepted the then federal regulation as an absolute minimum only because the financial remuneration was supplemented by a non-monetary component in the form of days off. In Brandenburg, 76 Rheinland-Pfalz, 77 Saarland 78 and Sachsen, 79 this component was removed without replacement. The total remuneration is thus lower than was possible under the federal regulation. The regulations of these federal states on the amount of remuneration therefore violate Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG.
Federal states with reduction and increase of one remuneration component each
In two federal states, one of the two remuneration components (monetary and non-monetary) was reduced, but the other was increased in return. In Sachsen-Anhalt, the non-monetary component was abolished, 80 but the monetary component was increased - even if only slightly. 81 In Mecklenburg-Vorpommern, the picture is the opposite: there, the monetary remuneration at the lowest remuneration level was reduced below the level of the previous federal regulation, 82 but at the same time, the non-monetary component was slightly increased. 83 In both of these federal states, the question is whether the reduction of one component can be compensated for by the increase of the other. It is thus necessary to determine the value of the non-monetary remuneration component.
The attempt to assign a financial value to (paid) time off not only encounters difficulty in having to assign a value to leisure time in general in the sense of ‘not having to work’, but also in determining the special value of the time spent in prison, which is determined to a great extent by others. 84 In view of this special situation in the penal system, the BVerfG has attached particular importance and value to the non-monetary component. In its decision in 2002, 85 the Court assumed that the then recently increased monetary component (basic remuneration of 9% of the reference amount) and the added non-monetary component (0.5 days of release per month worked) were of equal value. 86 It thus equated the value of half a day's leave to the monthly financial earnings. The total remuneration thus has a value equivalent to 18% of the basic remuneration. This valuation is to be agreed with. Equating the value of six days off with the annual salary of the detainees does indeed grant the time off a very high value. However, this seems appropriate in the result. For one thing, the financial comparative value is low. On the other hand, time that can be freely used during imprisonment or the earlier attainment of freedom through crediting against the release date has a special, high value in the situation of deprivation of liberty. The two types of wages granted by the total remuneration, namely, financial freedom on the one hand and actual freedom in the sense of time beyond the external control of the penal system on the other, are equal in value. For this reason, the BVerfG's solution does justice to the reality of imprisonment, which is difficult to grasp.
While in Mecklenburg-Vorpommern the increase of the non-monetary component to eight possible days off per year can compensate for the reduction of the monetary remuneration at the lowest remuneration level from 75% to 60%, the prisoner remuneration in Sachsen-Anhalt is currently unconstitutionally low. The marginal increase of the monetary component by 10% to 13% of the basic remuneration (depending on the remuneration level), cannot compensate for the loss of the exemption. A constitutional complaint in respect of the amount of prisoner remuneration in Sachsen-Anhalt is therefore likely to succeed.
Federal states with constant or higher remuneration components
The regulations in the federal states in which the remuneration remains the same or is higher than in 2002 must also be re-examined for their constitutionality according to the current criteria of consideration. In particular, Bayern, whose remuneration regulation was declared unconstitutional by the BVerfG in its judgment, is one of the federal states which, with regard to the amount, has retained the regulation that already applied under the StVollzG. In Nordrhein-Westfalen, where the remuneration regulation is also too low, the non-monetary remuneration was even increased – albeit only slightly.
Unsuitability as a contribution to resocialisation
According to the BVerfG's limited standard of review, the level of remuneration is only unconstitutional if it is obviously not appropriate, in its entirety, for demonstrating to the inmates the value of honest gainful employment in creating or maintaining of their own means of subsistence. 87 According to the BVerfG, this value becomes particularly clear if the inmates are put in a position to cover the essential costs of living themselves through financial remuneration: ‘The remuneration should put the inmate in a position to demonstrate to him the meaning of his work. This will be the case in particular if the remuneration is of a monetary nature and enables the prisoner to pay off his debts, to meet his legal maintenance obligations towards relatives, to seek reparation for the damage caused by the offence and to make sufficient provision for the future.’ 88
Depending on the work performed and the federal state, in Germany the monthly remuneration for full-time work in 2024 ranges between approximately EUR 199 and EUR 466 per month. Even if the highest possible earnings were used, not a single cost item listed by the BVerfG could be even remotely covered. The lowest possible child maintenance alone (so-called ‘minimum requirement’) amounts to between 480 EUR (0–5 years) and 689 EUR (up to 18 years) in 2024. 89 With the current prisoner allowance, it is thus de facto impossible to make maintenance payments of a meaningful amount. As a result, prisoners run the risk of burdening and damaging their family network even more than they already do through imprisonment itself. In addition, it is equally impossible for them to pay off their own debts or to save relevant amounts for the time after imprisonment. 90 Many prisoners face a mountain of debt after their release; longer prison sentences carry with them the risk of old-age poverty. Such a precarious situation encourages recidivism. The monetary remuneration is so low that it cannot convey the meaning of the work. 91 The low remuneration thus jeopardises the resocialisation of the inmates rather than contributing to it. The non-monetary component is a useful addition within the overall remuneration, but not a substitute for the insufficient financial remuneration. The amount of time off that can currently be obtained cannot compensate for the deficiencies in the monetary component. It is true that time off, or in the case of reduced imprisonment, freedom, is of great value to prison inmates. However, certain tasks that are conducive to resocialisation, such as debt reduction or support for dependants, undeniably require a minimum of financial resources. The monetary remuneration does not reach this minimum. The total remuneration in every federal state is therefore too low to ‘make the prisoner aware of the value of regular work for a future self-responsible and punishment-free life in the form of a tangible advantage for him’. 92 Not only does it not promote resocialisation, but it is instead more likely to have the opposite effect, namely, to make prisoners doubt the value of work.
This result is further entrenched by the most recent ruling of the BVerfG in a corresponding review. Bayern, whose remuneration regulation was declared unconstitutional by the BVerfG in its judgment, is one of the federal states that has maintained the level of the regulation that was already in force under the Federal StVollzG. In Nordrhein-Westfalen, where the remuneration regulation is also too low, the non-monetary remuneration was even increased - albeit slightly - and yet it was declared unconstitutional.
The BVerfG has thus made it clear that the level of remuneration, which it had judged to be ‘still constitutional’ in 2002, 93 is no longer sufficient in the current circumstances. Slight increases as in North Rhine-Westphalia do not change this. According to this and in view of the fact that none of the federal states has made a significant increase compared to 2002 and that the remuneration there hinders resocialisation as shown above, the prisoner remuneration in the other federal states also does not currently meet the demands made by the resocialisation requirement pursuant to Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG.
Arguments against an increase
The Federal Government and the federal states also cite other reasons against an increase in remuneration, the validity and legal relevance of which require close scrutiny.
The allegedly lower productivity of working prisoners is often cited as an argument against higher remuneration. 94 However, the modern penal system and its focus on the rehabilitation of prisoners prohibit a direct correlation between remuneration and productivity. Economic considerations can only be taken into account indirectly, as the economic situation and actual financial limitations can influence and inhibit the development of prisoner remuneration. 95 Prisoner remuneration does not serve to reward valuable productivity. Instead, the payment serves the purpose of resocialisation and is intended to show the inmates ‘that gainful employment is useful for establishing a livelihood.’ 96 The aim of prison work is therefore to give inmates a positive image of honest gainful employment and a positive experience of the benefits (wages) earned. If wage rates were dependent on productivity, this objective would be undermined, especially since the inmates have no influence on what work they are assigned or what work is available at all, and how the products of their work can be sold on the market. 97
Concerns are also expressed that higher wages could lead to limited competitiveness and the loss of jobs for prisoners, and thus in turn to a deterioration of the prospects for resocialisation. 98 However, if one takes the idea of resocialisation seriously, work and remuneration serve the sole purpose of resocialising the inmates. It is certainly possible that prison work costs more than can be earned from its results. However, this alone does not lead to the loss of jobs. This would only be the case if the higher costs were passed on directly to customers and consumers. The risk of job losses therefore only exists if the prison system continues to be as restrictive and frugal as before, 99 but can be avoided if the resocialisation goal is taken seriously and any additional financial burden is accepted through appropriate wages. 100
The weightiest argument against higher prisoner remuneration is the greater burden imposed upon the federal state budgets. 101 It is legitimate to take into account genuine financial considerations of the state, as the state must only pursue the idea of resocialisation to the extent that it can reasonably be expected to do so. However, it is realistic to assume that the budgets of the federal states could now cope with an (at least moderate) increase in prisoner remuneration. 102 As far as the federal state budgets are concerned, a positive trend is emerging in principle, in particular with regard to the criteria for consideration used by the BVerfG in 2002. Since 2011, the federal states as a whole have achieved steady growth and, since 2014, positive financial balances. The only exception was 2020 due to the Coronavirus pandemic, 103 but households recovered quickly and achieved significant growth again in 2021. 104 The high unemployment rate, which the Court still emphasised in 2002 as a factor limiting the legislature's room for manoeuvre, was 9.8% at the time. 105 Since then, however, unemployment has fallen steadily to 5.0% and, after a slight increase during the Coronavirus pandemic, has now already returned to this level. 106 Due to the tighter economic situation, the unemployment rate rose again slightly to 5.7% in 2023. 107 However, the Federal Ministry of Finance expects the unemployment rate to fall back to 5.2% as early as 2024. 108 It therefore seems obvious that the budgets could cope with an increase in prisoner remuneration, 109 and raises the question of whether the alleged financial concerns may only be a pretext. This is particularly true because there appears to be no serious discussion of how the additional financial burden could be kept within limits. Higher wages, for example, could be partially fed back into the system via contributions to prison costs after payment of taxes and social security contributions, as under the Austrian ‘gross scheme’. Other relief effects are also conceivable, such as additional income tax revenue, 110 or reduced need for social benefits after imprisonment. 111
Result: Prisoner remuneration unconstitutional in the Whole of Germany
As a result, the BVerfG's ruling of 20 June 2023 can be described as a landmark ruling. For the first time in 25 years, there will be a substantial change and, as expected, a significant increase in prisoner remuneration in Germany. This applies first to the two federal states whose regulations were challenged, namely, Bayern and Nordrhein-Westfalen. However, the considerations of the BVerfG can also be applied to the regulations of the other federal states. The Court's reasoning deserves approval. Following the judgment, prisoner remuneration is currently unconstitutionally low throughout Germany and violates the resocialisation requirement pursuant to Art. 2 Abs. 1 in conjunction with Art. 1 Abs. 1 GG.
Outlook
The legislatures of the two federal states directly affected, Bayern and Nordrhein-Westfalen, have until 30 June 2025 to regulate the level of prisoners' pay anew in accordance with the constitution. However, there will be no retroactive increase, i.e., payment of higher wages for prison labour performed in the past.
Formally, the ruling only applies to these two federal states. However, the regulations on prisoner pay in most of the federal states are very similar to those that were specifically reviewed in these proceedings. For this reason, it is very likely that in a corresponding review, similar deficiencies would also be discovered in these other federal states and the regulations would be declared unconstitutional.
It is therefore likely that not only Bayern and Nordrhein-Westfalen, but also the other federal states, will now review their respective regulations on prisoner remuneration and – hopefully - also correct them upwards.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
