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Interrelations of “Debt” and “Guilt” in Criminal Law: Reconsidering a Nietzschean Narrative in the Context of Late Capitalism
Morten Boe*
In the last two decades, spurred by tumultuous economic events, “debt” has been rediscovered as a central topic of academic inquiry in political science, critical theory, and philosophy.[1] More specifically, in the wake of successive financial and sovereign debt crises over the past fifteen years, there has been a marked tendency to moralize debt, reviving the old guilt-debt motif whereby economic obligations are increasingly framed in ethical or quasi-theological terms.[2] This (re)moralization of debt has coincided with a growing scholarly interest in the creditor-debtor relationship across a range of disciplines.[3] In criminal law, too, attention has (again) turned to economic punishments, issues surrounding monetary sanctions, and ensuing socioeconomic discrimination in modern criminal justice systems, often captured in critiques of a resurgence of debtors’ prisons.[4]
However, the more fundamental relationship between “debt” and “guilt”—or as it is tellingly expressed in German, “Schulden” and “Schuld”—awaits (re-)consideration from the perspective of criminal law theory.[5] Starting from the classic though often sidelined Nietzschean genealogy of punishment rooted in archaic debt relationships, this paper analyzes linguistic and metaphorical traces of the relationship between debt and guilt in contemporary criminal legal discourse. In doing so, it challenges the often-assumed separation between the (supposedly morally neutral) economic sphere and the (inherently value-laden) domain of criminal law. Rather, the links between the two extend beyond mere linguistic remnants. It is well known that modern criminal justice systems regularly rely on an elaborate system of economic or monetary sanctions. They also often include legal instruments that convert criminal fines into imprisonment in the event of non-payment, prima facie allowing a debt to the state to be transformed into a prolonged deprivation of personal liberty. In some jurisdictions, offenders are additionally required to bear the costs associated with their punishment, i.e., costs related to the criminal process and/or their incarceration.
Against this background, this paper invites reappraisal of the intricate interplay between “debt” and “guilt,” as well as the myriad of interrelations between economic and criminal legal spheres in contemporary legal systems. It does not attempt an economic analysis of criminal law in the traditional sense,[6] nor does it hold theoretical explanatory ambitions or pursue a Marxist critique that sees criminal law primarily as an instrument of class domination or ideological reproduction.[7] Rather it adopts a more modest and observational posture. Its aim is not to denounce or normatively assess the (potential) economization of criminal law, but to draw attention to the conceptual and linguistic entanglements between “debt” and “guilt” within contemporary penal discourse. It foregrounds the history, persistence, and transformation(s) of this guilt-debt motif without presuming to resolve the normative or structural questions it raises. In this sense, the paper is less a critique than an inquiry: it asks what it means for criminal responsibility to be imagined through economic metaphors and framed in monetary language, rather than determining whether it ought to be.[8] The analytical focus thus shifts from the truthfulness or appropriateness of representations to their effects, i.e., the practices and forms of life they sustain, the types of subjects they construct, and the power relations they reinforce.[9]
I. Between the Morality of Guilt and the Economy of Debt
A. Nietzsche’s Genealogy of Punishment
The point of departure is a well-known passage from the Second Essay of Nietzsche’s Genealogy of Morals. In this section, Nietzsche offers a speculative account of the origins of punishment in archaic debt relations, proposing a historical and psychological linkage between the concepts of debt, guilt, and suffering.[10] He famously claims that the very idea of an equivalence between harm and retribution—central to punitive practices—has its origin in early economic arrangements, wherein punishment functioned as a mechanism for securing repayment and restoring contractual equilibrium.
Nietzsche writes that the debtor, “in order to induce credit in his promise of repayment . . . will, by virtue of a contract with his creditor . . . , pledge something that he still possesses, something that he still has in his power, for instance, his life or his wife, or his freedom or his body.”[11] According to Nietzsche, the creditor was thereby granted the legitimate right of inflicting pain upon the debtor in the event of nonpayment: The creditor “has the power of inflicting in the body of the [debtor] all kinds of pain and torture—the power, for instance, of cutting off from it an amount that appeared proportionate to the greatness of the debt”[12]. It is through this dynamic, Nietzsche argues, that the idea took shape “that every injury has . . . its equivalent price, and can really be paid off, even though it be by means of pain to the debtor.”[13] Punishment, in this sense, becomes a medium of exchange, rendering suffering a currency through which balance is restored.
Nietzsche goes on to extend this creditor-debtor logic into the structure of communal life, arguing that the relationship between the individual and the community mirrors that of debtor and creditor. As he writes, “community stands to its members in that important and radical relationship of creditor to his [debtors].” And in the case of a crime, “[t]he community, the defrauded creditor, will get itself paid.”[14] Nietzsche emphasizes that in this communal setting, the actual harm caused by the offender is of secondary concern. More fundamental is the breach of a collective covenant: “[T]he criminal is above all a breaker, a breaker of a word and covenant to the whole, as regards all the advantages and amenities of the communal life in which up to that time he had participated. The criminal is a [debtor] who not only fails to repay the advantages that have been given to him, but even sets out to attack his creditor.”[15]
It would be misguided to interpret Nietzsche’s narrative as a literal or precise historical account and dismiss it for historical inaccuracy. However, legal history provides some evidence, such as debtor’s prisons and debt peonage, that lends substance to this story. Particularly striking are the similarities to the status of “addictus” in Roman law, where a debtor, by failing to repay their debt, entered an ambivalent dual-state of free citizen and slave, subject to the creditor’s control.[16] For Nietzsche, however, this story functions more as a philosophical thought experiment. It is an exploration, taken to its extreme, of what it means to frame and conceptualize morality and criminal justice as analogous to a monetized debt relationship.[17] In this sense, Nietzsche’s ideas remain pertinent today,[18] prompting reflection on how notions of debt and repayment structure not only economic relations but also how we conceptualize moral and criminal justice systems.
B. Debt and Morality in the Age of Late Capitalism
The exploration of the interactions between economy and morality has a long and rich intellectual tradition. Prominent thinkers such as Marx, Paschukanis, Deleuze, Foucault, and Benjamin have all critically engaged with this relationship, each offering distinct yet complementary insights into how economic structures inform, shape, and are shaped by moral and legal systems. Similarly, it is a well-established idea that the forms of punishment employed by a society correspond—at least in part—to its prevailing social and economic structures.[19] Most will readily accept the basic claim, originally developed by Simmel, that monetary fines presuppose a monetized economy and sufficiently uniform punitive effect across the various socio-economic strata of a given society.[20] More specific and theoretically charged is Rusche and Kirchheimer’s claim that the “natural limits” of the fine system are “the material conditions of the lower strata of the population.”[21]
In recent years, particularly in the wake of global financial and debt crises, the concept of debt—along with the broader moralization of economic practices—has garnered renewed scholarly attention. Researchers from across disciplines increasingly explore the ethical dimensions of economic structures and their implications for justice, inequality, and societal governance.[22] As Kloeckner aptly summarizes, discourses on financial and sovereign debt crises “have once again demonstrated the entanglement of Schuld [guilt] and Schulden [debt] powerfully.”[23]
However, the moral stance toward debt has neither been straightforward nor coherent over the course of history; rather it is conceptually fraught.[24] In capitalist societies, the paradigm of investment[25] may have significantly altered the way in which debt is socially perceived. Once closely associated with a state of guilt and moral failure, debt has evolved into a rational bet on future progress and personal gain.[26] At the same time, responsibility has been reallocated: Rather than scrutinizing the (formally morally suspect[27]) lender, contemporary discourse increasingly casts the borrower as morally accountable, with default interpreted as a reflection of personal deficiency or failure.[28] As Kloeckner emphasizes, while the investment paradigm may partially normalize or legitimize indebtedness, it simultaneously obscures that chronic indebtedness is often an unavoidable and unescapable condition for marginalized groups, rather than the product of personal failure. The focus on the debtor’s accountability may thus risk deflecting attention from the structural causes for and systemic determinants of private debt and its uneven distribution across society.[29]
C. Criminal Law in Late Capitalism
These recent economic developments, alongside the scholarly rediscovery of the creditor-debtor relation, invite and indeed necessitate a critical reassessment of the role of monetary sanctions in modern societies, for example in their emphasis on consumption.[30] Any criminal legal system that employs monetary sanctions should pay close attention to socio-economic developments and may face profound structural challenges in times when socioeconomic inequality is on the rise and social support systems crumble. Owing to the constraints of this article, I will limit myself to highlighting a few significant points:
First, the evolving engagement with “debt” in modern economies may have broader implications for the understanding of criminal “guilt.” For instance, the normalization of debt under the investment paradigm may also open avenues for reimagining criminal guilt not merely as a negative liability to be expiated through punishment, but as a potentially productive force that gestures toward restorative rather than (purely) retributive models of justice.[31]
Second, such an inquiry invites a reconsideration of the meaning and role of the offender’s “indebtedness” to society and the state; whether conceived as an essential feature of the human condition, a civic obligation, a necessary component of contractual and fairness-based theories of punishment, or a mechanism of neoliberal governance.[32]
Third, particularly in the context of corporate, economic, and financial crimes, certain tendencies suggest a different trajectory: one in which criminal responsibility might be reduced to a financial calculus, raising the question of whether crime itself might come to be treated as just another commodity to be paid for, with the criminal process and a potential fine absorbed as manageable business expenses, accounted for in company books, and insured against to reassure stakeholders.[33]
Fourth, and finally, one could explore a broader structural shift from the welfare state model to punitive state structures, especially in the U.S., which may indicate increasing social insecurity and emerging marginality.[34]
II. Conceptual Entanglements: “Debt,” “Guilt,” and Their Metaphorical Crossings in Criminal Law’s Language
Rather than venturing further into these philosophical and sociological debates, this paper limits itself to re-examining economic traces embedded in the criminal law—visible in its language and most basic structures. The concept of “guilt” has long been intertwined with economic metaphors in legal discourse. From the notion of “owing” a debt to society, to the language of “repayment” through punishment, criminal law frequently invokes economic terminology to articulate moral and legal culpability. These metaphors, while often implicit, play a crucial role in shaping both legal outcomes and public perceptions of justice. This section explores how criminal law has historically and contemporarily utilized economic imagery to construct and understand guilt and culpability, focusing on the metaphorical traces that link debt, guilt, and punishment.
A. The Significance of Metaphors
Awareness of the figurative nature of language and the cognitive processes underlying metaphor is by no means a recent development. It has long been recognized that abstract ideas can often only be expressed through metaphorical transfer of meaning.[35] In the context of the moral and criminal law concept of “guilt”, Arthur Kaufmann built upon this insight by emphasizing the “inner analogy of philosophical concepts” and cautioning against the risk that “the mode of being of the intuitive object from which the linguistic image is drawn may be conflated with that of the intended object.”[36] Recent advances in cognitive science have renewed interest in the epistemological significance of metaphorical meaning transfer, as reflected in the emerging fields of metaphor studies and cognitive linguistics.[37]
Empirical research now demonstrates that when metaphors are employed, brain regions associated with the source domain of the metaphor are activated alongside those related to the target domain. This neural activation suggests that experiences and emotions tied to the source domain influence both reasoning and the linguistic comprehension of the abstract concept within the target domain. The choice of a metaphor may therefore influence the way we think about and act regarding these abstractions, promoting behavior aligned with scenarios that resemble the familiar image invoked by the metaphor.[38] One study, for instance, indicates that the synonymity of guilt and debt in Germanic languages may have tangible effects on borrowing behavior.[39] Another set of cognitive experiments demonstrated that unethical acts giving rise to guilt are embodied as a sensation of added weight, and that individuals recalling such guilt-inducing conduct perceive physical tasks as requiring greater effort.[40] Consistently, empirical evidence supports an embodied association between debt/indebtedness and physical burden.[41]
In short, a metaphor invites “us to act upon the world as if it were configured in a specific way like that of some already known entity or process.”[42] Contemporary legal metaphorology and critical frame analysis, therefore, rightly emphasize that the figurative and associative force of entrenched metaphors and related figures of speech often escapes notice—and thus critique.[43] In legal reasoning, metaphors are rarely ornamental or the result of a conscious creative choice; more often, they are structurally constitutive and unconsciously habitual, shaping perception and guiding interpretation.[44] They may even acquire legitimating power when the intuitive image is mistaken for the solution itself, thereby activating the full spectrum of meanings and affective resonances embedded within language.[45]
B. Guilt’s Metaphors in Criminal Law and their Potential Influence
For criminal law, this raises the question of how means of language—like the term “guilt” and its economic metaphors—may shape our understanding of criminal responsibility. What are the implications of consciously or unconsciously drawing on concepts and ideas from the economic sphere—such as the image of guilt as debt—to conceive of the meaning of crime, punishment, and responsibility? While the emphasis here falls on economic imagery, it is important to recognize that this field is supplemented, and at times supplanted, by other metaphorical domains—some in proximity, such as guilt conceived as a physical burden (guilt as measurable weight), and others more distant, such as guilt imagined as a stigmatizing stain.
Traces of the conceptual link between Schuld (guilt) and Schulden (debt) can already be found in the Bible. According to one line of interpretation in theological hermeneutics, the notion of sin in the Old Testament was only later subjected to an economic reframing, culminating in the New Testament depiction of sin as an outstanding (economic) debt.[46] Similarly, the early history of criminal law points to an economic origin of the principle of proportional compensation (lex talionis), as exemplified by the institutions of Wer- and Friedgeld and the compensation catalogs of the ius commune.[47]
In this regard, the language of guilt and punishment, conceived as counterparts to merit and reward, has a longstanding tradition in criminal law. Across all Indo-Germanic languages, one finds evidence of this historical and semantic convergence between economic “debt” and moral-legal “guilt.” For instance, the Old English term geilt denoted both sacrifice and compensation, and its legacy endures in the modern English word guilt.[48] Similarly, the term retribution, through its Latin roots re- and tribuere, conveys the transactional notion of giving back or restoring, originally referring to the act of compensating a victim’s tribe.[49] Debt and guilt are thus interconnected through the metaphorical image of moral accounting.[50]
If we turn to more modern writings on criminal law construed broadly, language building on the guilt-debt metaphor is widely observable. Hegel, for example, illustrated the idea of “retribution according to value” (Vergeltung dem Werte nach) with the image of the equivalence between performance and counter-performance in contractual relations, thereby linking the economic sphere of equivalent exchange with the concept of value in criminal law.[51] Contemporary theories have developed these economic analogies in increasingly complex forms. For instance, punishment has been interpreted as a kind of “extended tax obligation” imposed upon the citizen, legitimized as a secondary duty of cooperation in the collective project of freedom, exacted, as it were, “at their own cost.”[52]
But how might this early economic framing have influenced the understanding of criminal responsibility? As early as 1877, a commentator noted the “true irony” that the German term Schuld, originally meaning that which is owed, has come to signify its apparent opposite: namely, the violation of duty.[53] In fact, “guilt” in criminal law can refer to (at least) two separate obligations or duties. On the one hand, it can be understood as “the guilt of the offender that precedes the wrongdoing, even though it is realized through that wrongdoing.”[54] On the other hand, criminal guilt may also describe “the present obligation (obligatio) of the offender to endure the punishment imposed upon him (passively), or to perform certain penal acts (actively).”[55] These meanings are often linked by the idea that the original obligation to obey the law, is, in the case of a transgression, transformed into a secondary obligation to submit to the punishment as a form of reparation or compensation.
This semantics of guilt thus allows the infliction or endurance of punishment to be reconstructed as the fulfillment of a highly personal “duty to undergo punishment,” or obligatio ad poenam patiendam.[56] The implicit metaphors of “debt” and “indebtedness” operative in this framework evoke the (contractual) imagery of “promise” and “fault,” and through this dynamic, potentially reinforce underlying asymmetries of power.[57] The repayment of the debt—be it in the form of money or punishment—thus appears as a moral ought, mirroring the original duty. The economized understanding of “guilt” thereby suggests and enables the abstract connection, proportionality, and seamless integration of two otherwise distinct social acts: the offender’s “deed” and the “punishment” by the state. Through the medium of measurable guilt as a form of balance, an internal relationship is established between the two; a “phantasm of equivalence” that both follows from the crime and determines the punishment.[58]
In this regard, the economic conceptualization also offers an important imaginative contribution to ensuring that criminal “guilt”—that is, the attribution of responsibility for a legal violation—does not remain an indeterminate or abstract state but instead becomes a measurable entity, quantifiable in penal units (that is, days of imprisonment or the number of day fines).[59] It is precisely this capacity for operationalization that distinguishes criminal “guilt” from existential, theological, or metaphysical notions of guilt, which refer to a pre-existing, inescapable, and formless “guilt” inherent in the human condition.[60] By contrast, criminal guilt can be addressed within a depersonalized and arithmetic concept of punishment—irrespective of the circumstances of the specific social conflict and the particular demands for restitution, reconciliation, or punishment.[61] One might argue, therefore, that calculable units of punishment, akin to a currency, turn criminal justice “into a matter of impersonal arithmetic—and by doing so, . . . justify things that would otherwise seem outrageous or obscene.”[62]
C. Alternative Economic Metaphors
While economic language has often served to justify a retributive understanding of punishment, metaphors drawn from the economic realm can also be mobilized to challenge current penal practices. A pertinent example is Nils Christie’s seminal essay “Conflicts as Property” (1977), which, by applying the concept of ownership to conflicts and understanding them “as property,” became the reference point for victim-centered theories of criminal law.[63] Christie specifically employs an economic framing to depict conflicts as valuable social assets that can be owned but also stolen and expropriated by lawyers and other state actors from the individuals directly involved in the conflict.[64]
Another example is the critical potential inherent in the notion of a balance of performance, which—through a quasi-reciprocal logic—can call into question the legitimacy of the state’s punitive authority and standing in unjust societies and vis-à-vis socioeconomically deprived citizens.[65] The central idea is that the offender, as a citizen and member of the legal community, confronts the state not merely as a “debtor,” but also as a “creditor.” In this vein, Jakobs argues that in order “to speak meaningfully of guilt in a material sense,” the state must itself provide a corresponding performance commensurate with the “price” it demands for law-abiding conduct—or, where such law-abidingness is absent, with the corresponding guilt it attributes to the citizen.[66]
Finally, the recognition of a pre-legal, moral form of “guilt” has historically served as the foundation for rejecting the very legitimacy of a secular system of criminal punishment, on the grounds that civic sanctions can never adequately correspond, either in kind or degree, to such guilt.[67] For instance, in his 1797 treatise On the Doctrine of Reward and Punishment, Abicht argued that moral “guilt” is fundamentally incommensurable: It admits of no evil “that could be its due or punishment.”[68] For Abicht, only inner suffering—i.e., the adverse feeling accompanying the recognition and belief in one’s guilt—could constitute an appropriate response to moral culpability.[69] Any notion of compensating for guilt through the infliction of external evils, he contends, is presumptuous, since “guilt” provides neither a justification for nor a “counterweight” to a penal sanction.[70] Those who adhere to this erroneous notion of punishment as the “just due” of guilt, he claims, deceive themselves through false inferences, merely putting forward a “spurious reason, a dubious title (that is, the title of punishment as the due of guilt)” to justify interests that ultimately cannot be normatively grounded.[71] Abicht’s critical engagement with the linguistic dimension of guilt and punishment, as well as his fascinating, if to modern readers somewhat unfamiliar, counter-model of a non-monetized, incommensurable notion of guilt, illustrates how the figurative language attached to a concept can be mobilized and interpreted in divergent, even opposing ways. As the other examples also demonstrate, metaphors do not secure their meaning and normative import so reliably as to permit straightforward inferences from “image” to “thing.” Rather, the use of metaphor and analogical reasoning tends to only extend insofar as it aligns with pre-existing normative intuitions that it seeks to reinforce. Ultimately, there may be no escape from metaphorical language. What demands our attention, therefore, is not the metaphorical nature of debates surrounding criminal responsibility per se, but rather the metaphors that are chosen and normalized within the discourse. Such heightened awareness can, in turn, shed light on the normative choices involved in shaping how a legal domain is understood and represented through certain guiding metaphors, such as “guilt as debt.”
III. The Practical Nexus of Debt and Guilt in the Criminal Law: Toward a Typology
The preliminary and exploratory analysis of economic metaphors embedded within contemporary criminal law discourse in the preceding section highlights the potential for a structural investigation into the language surrounding criminal “guilt,” thereby facilitating broader reflections on the normative preconceptions and ideas that this language both expresses and sustains. This section moves beyond identifying symbolic (linguistic and metaphorical) parallels between economic debt and moral-legal guilt. It aims to offer a provisional systematization of the practical interrelations and entanglements between the economic and moral-legal spheres, with a particular focus on how they manifest in modern criminal justice systems.
Within this framework, “debt” is understood not merely in the narrow financial sense, but as encompassing broader markers of socio-economic disadvantage and conditions associated with poverty, precariousness, and structural marginalization. Correspondingly, the notion of “guilt” is not confined to formal criminal liability but might extend to a wider range of state-imposed punitive practices, including administrative sanctions and other coercive legal measures.
The proposed typology is predicated on two analytically distinct movements: first, the transformation of debt into legal or moral guilt; and second, the converse process by which guilt is converted into debt. This bidirectional movement serves as a base structure for understanding how legal and moral systems in practice rely on economic rationalities and instruments. While this paper cannot offer a detailed and exhaustive analysis of specific monetary sanctions or the economic forces shaping individual criminal justice systems, its objective is to outline a conceptual framework that illuminates and structures the broader entanglements of penality and economy, of guilt and debt. In doing so, it necessarily abstracts from jurisdictional detail in favor of analytical breadth and clarity. Although the analysis primarily draws on examples from Germany and the Global North,[72] the patterns identified resonate across jurisdictions around the world.[73]
A. From “Debt” to “Guilt”
The movement from “debt” to “guilt” manifests itself across multiple levels of the criminal justice system: At the legislative level, there has long been an ongoing discussion on the criminalization of “debt” and “poverty,” whether direct or indirect. While mere indebtedness is, in principle, not a punishable offence in modern criminal justice systems, statutory provisions do exist that specifically target certain types of debts, thereby protecting specific financial interests and criminalizing some categories of debt-related behavior. For instance, s. 170 of the German Criminal Code criminalizes the evasion of statutory maintenance obligations when such evasion endangers the necessities of life of the entitled party.[74] Similarly, s. 283 GCC penalizes certain evasive acts in the case of overindebtedness or impending insolvency. Beyond these relatively rare, targeted provisions directly attaching to a state of indebtedness, the treatment of so-called poverty crimes[75] like petty theft, fare evasion, and social welfare fraud, which disproportionally affects economically marginalized groups,[76] also establishes a link between debt and crime.[77]
At the level of the criminal process, evidence across many jurisdictions indicates that individuals of low socio-economic status are more likely to be charged with offences than their wealthier counterparts, whose charges for minor offences are often dismissed.[78] This disparity is, in part, attributable to unequal access to legal representation: Individuals able to afford private counsel are better positioned to have charges dropped or diverted through mechanisms such as monetary settlements, which are not considered a formal punishment (cf. German Code of Criminal Procedure § 153a).[79] In many legal systems, access to legal representation is not universally guaranteed across all types of proceedings. As a result, socio-economically marginalized groups are frequently left without adequate defense, particularly in cases involving “minor” charges—offences often closely tied to poverty.[80] Moreover, full compensation for costs arising from legal representation is rarely assured. Instead, systems of litigation cost assistance (Prozesskostenhilfe) typically only offer conditional support, functioning effectively as a state loan: While assistance is provided initially, recipients may be obliged—especially in case of conviction—to reimburse the state should their financial situation improve.[81] In this way, legal representation can become a source of indebtedness to the state, further blurring the line between financial encumbrance and the punitive dimensions of the criminal justice system.
Finally, at the enforcement level, unpaid fines—which at least initially can be understood as a specific monetary debt to the state[82]—can often be converted into imprisonment in the event of non-payment.[83] This so-called “Ersatzfreiheitsstrafe” (EFS) in Germany, which accounts for about 10% of the German prison population, exemplifies the complex interplay between “debt” and “guilt,” particularly highlighting its more problematic aspects.[84] Studies indicate that “typical” fine defaulters are socioeconomically marginalized individuals, who are disproportionately affected by unemployment, mental illness, substance abuse, homelessness, or poverty.[85] Offences leading to EFS imprisonment are typically of minor severity, such as petty theft, fare evasion, and drug offenses, and are regularly punished with fines of a low number of daily rates.[86]
Although, in theory, an EFS can be avoided through community service, payment plans, or civil debt collection, in practice these options are rarely used. This is likely due, at least in part, to the fact that these defendants often lack both a sufficient understanding of the criminal process and the resources to secure legal representation, which is notprovided by the state in minor cases. Combined with the criminalization of poverty-related offences and a broader “managerialization” of the criminal justice system—particularly through the increased use of penal orders[87]—these dynamics have led to a downfall of the EFS in practice, raising serious concerns about its compatibility with constitutional guarantees.[88] In sum, while the EFS is routinely justified as a last resort intended to compel the unwilling, it appears in practice to disproportionately punish the unable.[89]
B. From “Guilt” to “Debt”
Regarding this movement, we can again distinguish three distinct dimensions: first, the imposition of fines or other monetary obligations as a formal mode of punishment; second, the creation of debt as a direct side-effect of a criminal conviction, namely through the accumulation of fees, costs, and surcharges; and third, the broader, indirect financial consequences that may follow from a criminal trial and conviction, including unemployment, loss of business licenses, and political disenfranchisement.
When considering the use of fines as a formal sanction, it is striking that criminal law theory has engaged only sporadically with this empirically and practically central mode of punishment. Despite their ubiquity, important questions remain unresolved regarding how monetary sanctions—as an obligation to the state to pay a sum of money—fit within our broader justificatory frameworks for the exercise of penal power.[90] Traditional debates on fines as a form of punishment have revolved, without a clear outcome, on two issues: wherein their element of “hard treatment” lies and how their punitive effect on the defendant is ensured.[91]
At its core, the issue remains how the imposition of a certain “debt” is supposed to negatively affect an individual’s quality of life—whether by limiting discretionary consumption or by impinging upon the ability to secure necessities—and thereby generate a punitive effect.[92] Even under daily-rate systems, designed to calibrate punishment to an offender’s income, the actual impact of fines can vary significantly: Individuals paying from current earnings experience an immediate and sustained reduction in their standard of living, whereas those able to draw on savings may absorb the fine with comparatively little disruption. Thus, although lower-income individuals in theory must pay smaller absolute amounts, they are often unable to pay fines upfront. As a result, they are more likely to accumulate secondary debt and spend disproportionate time and resources resolving their cases.[93]
The (modern) perception of fines as a less intrusive alternative to imprisonment for minor offences may, at least in part, explain the lack of sustained theoretical engagement with the nature and challenges of “debt as a punishment.” However, in many contemporary jurisdictions, monetary sanctions have increasingly become the default mode of punishment, with imprisonment reserved for more serious offences.[94] One could thus argue that the paradigmatic sanction—at least for significant, especially regulatory parts of modern criminal law—is shifting toward the monetary fine, such that legal “guilt” is frequently expressed and operationalized through the creation of an economic “debt” owed to the state.
Beyond the imposition of fines, a variety of other monetary instruments, including court costs, administrative or prison fees, and other charges, often accumulate to form what has been termed “criminal justice debt” or “legal financial obligations.”[95] These additional financial burdens can transform what is formally a short and clearly defined punishment into a prolonged condition of indebtedness to the state, ultimately producing a form of informal punishment with repercussions for the individual’s prospects of reintegration.[96] This phenomenon has garnered significant attention in recent years, particularly with regard to the U.S. criminal justice system, where monetary sanctions have at times been valorized as a revenue stream for courts and the broader criminal justice system.[97]
Finally, the extra-legal, indirect consequences of criminal conviction and punishment—such as loss of employment, disintegration from social support structures, political disenfranchisement, and disruption of family networks—often contribute to a vicious cycle of economic hardship and social marginalization.[98] While a more detailed engagement with the extensive literature on collateral consequences of criminal convictions lies beyond the scope of this analysis, its core insight seems crucial: Debt and crime emerge as mutually reinforcing risk factors, making indebtedness and unemployment defining features among (especially recidivist) offenders.[99] Legal debt resulting from prior processes, along with other collateral consequences, likely exacerbates the accumulation of financial and social disadvantages. These societal barriers to employment, housing, political participation, and professional opportunities hinder offender reintegration, further entrenching broader socio-economic inequalities and, by driving released prisoners into illicit labor markets, likely contributing to ongoing criminality.[100]
IV. Conclusion
This paper has illuminated the conceptual and linguistic entanglements between “debt” and “guilt” in contemporary criminal legal discourse. Tracing the persistence and transformation of the guilt-debt motif, from Nietzsche to contemporary debt and financial crises, invites a critical reconsideration of how economic metaphors and other figurative language influence our understanding of criminal responsibility and legal punishment. While not aiming to offer a normative critique or theoretical resolution, this paper has highlighted the potential significance of these entanglements in shaping legal practices and societal norms, particularly in the context of contemporary economic turmoil. It advocates for a deeper understanding of how criminal law, far from existing in isolation, is interwoven with broader economic structures and symbolic frameworks in society.[101]
* Researcher, Max Planck Institute for the Study of Crime, Security and Law, Freiburg i. Br. (m.boe@csl.mpg.de).
[1] Cf. Dawn Burton, Credit and Consumer Society (2008); Laurence Fontaine, The Moral Economy, Poverty, Credit and Trust in Early Modern Europe (2014); David Graeber, Debt: The First 5000 Years (updated and expanded ed., 2014); Alexander X. Douglas, The Philosophy of Debt (2015).
[2] Christian Kloeckner, Schuld/en, or: Renegotiating Debt and Guilt in US Culture After the 2007/08 Financial Crisis, 20 KulturPoetik 108 (2020).
[3] Cf. David Malone, The Debt Generation (2010); Chris A. Gregory, On Money Debt and Morality: Some Reflections on the Contribution of Economic Anthropology, 20 Soc. Anthropology 380 (2012); A Debtor World: Interdisciplinary Perspectives on Debt (Ralph Brubaker et al. eds., 2012); Wolfgang Streek, Buying Time: The Delayed Crisis of Democratic Capitalism 72-96 (2014); An Anthropological Economy of Debt (Bernard Hours & Pepita O. Ahmed eds., 2015); Mark Horsley, The Dark Side of Prosperity: Late Capitalism’s Culture of Indebtedness (2015); Robert Kuttner, Debtors’ Prison: The Politics of Austerity Versus Possibility (2015); Christoph G. Paulus, The Eternal Struggle for Supremacy Between Creditor and Debtor, 31 Juridica Int’l 59 (2022). For an instructive overview with further references, see Mikkel Thorup, The Makings of the Debtor: Morality Tales and Economic Reasoning in Contemporary Neoliberal Societies, 184-85 Thesis Eleven 188 (2024).
[4] Loïc Wacquant, Punishing the Poor (2009); Linda E. Coco, Debtor’s Prison in the Neoliberal State: “Debtfare” and the Cultural Logics of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 49 Cal. W. L. Rev. 1 (2012); Genevieve Lebaron & Adrienne Roberts, Confining Social Insecurity: Neoliberalism and the Rise of the 21st Century Debtors’ Prison, 8 Pol. & Gender 25 (2012); Neil L. Sobol, Charging the Poor: Criminal Justice Debt and Modern-Day Debtors’ Prisons, 75 Md. L. Rev. 486 (2016); Dillon Wamsley, Neoliberalism, Mass Incarceration, and the US Debt Criminal Justice Complex, 39 Crit. Soc. Pol’y 248 (2018); see also Mary Fainsod Katzenstein & Maureen R. Waller, Taxing the Poor: Incarceration, Poverty Governance and the Seizure of Family Resources, 13 Persp. Pol. 638 (2015); Lindsay Farmer, The “Market” in Criminal Law Theory, 85 Mod. L. Rev. 435 (2022); Brittany Friedman et al., What Is Wrong with Monetary Sanctions? Directions for Policy, Practice and Research, 8 RSF: J. Soc. Sci. 221 (2022).
[5] But see Pat O’Malley, The Currency of Justice: Fines and Damages in Consumer Societies (2009); Miranda Joseph, Debt to Society: Accounting for Life under Capitalism 36-46 (2014); Michael Feola, Blood From a Turnip: Debt, Race, and Expropriation in Penal Capitalism, 23 Theory & Event 877 (2020).
[6] Cf. Richard A. Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193 (1985).
[7] Cf. Sarah Stefanutti, Of the Philosophy of Debt: In Search of the Relationship Between Debts and Duties, 13 Scenari 99 (2020).
[8] Id. at 110-15.
[9] Cf. Amia Srinivasan, Genealogy, Epistemology and Worldmaking, 69 Proc. Arist. Soc’y 127 (2019).
[10] See also Walter Benjamin’s discussion of this motif. Walter Benjamin, Capitalism as Religion, in 1 Selected Writings 288 (Michael W. Jennings et al. eds., 1999-2003); cf. Mauro Ponzi, Nietzsche’s Nihilism in Walter Benjamin 1-4 (2017).
[11] Friedrich Nietzsche, The Genealogy of Morals 49 (Horace B. Samuel trans., 1929 [1887]).
[12] Id. at 50.
[13] Id. at 48.
[14] Id. at 59.
[15] Id.
[16] The precise implications and legal ramifications of this status remain ambiguous and subject to ongoing debate, cf. Elettra Stimilli, Debt and Guilt: A Political Philosophy 37 (2018); Paulus, supra note 3, at 61-62; Max Radin, Secare Partis: The Early Roman Law of Execution Against a Debtor, 43 Am. J. Philology 32 (1922).
[17] Graeber, supra note 1, at 76, 80; cf. Stefanutti, supra note 7, at 112; Nigel Dodd, Nietzsche’s Money, 13 J. Classical Socio. 47 (2012).
[18] Cf. Bernard Williams, Nietzsche’s Minimalist Moral Psychology, 1 Eur. J. Phil. 4, 5 (1993).
[19] Georg Rusche & Otto Kirchheimer, Punishment and Social Structure 207 (2017 [1939]); cf. David Garland, Punishment and Society: A Study in Social Theory 280-83 (1990); Allesandro de Giorgi, Re-Thinking the Political Economy of Punishment: Perspectives on Post-Fordism and Penal Politics (2006); see also Dario Melossi, An Introduction: Fifty Years Later, Punishment and Social Structure in Comparative Analysis, 13 Contemp. Crises 311 (1989); Patricia Faraldo Cabana, On the Political Economy of Fines: Rusche and Kirchheimer’s Punishment and Social Structure Revisited, 27 Eur. J. Econ. Thought 661 (2020).
[20] Cf. Georg Simmel, The Philosophy of Money (1990 [1907]); Rusche & Kirchheimer, supra note 19, at 6-7, 166-76; cf. Pat O’Malley, Monetized Justice: Money and Punishment in Consumer Societies, in The Sage Handbook of Punishment and Society 375 (Jonathan Simon & Richard Sparks eds., 2013).
[21] Rusche & Kirchheimer, supra note 19, at 176; cf. Faraldo Cabana, supra note 19.
[22] See, e.g., Annie McClanahan, Dead Pledges: Debt, Crisis, and Twenty-First-Century Culture (2016); Maurizio Lazzarato, The Making of the Indebted Man: An Essay on the Neoliberal Condition (2012); Joseph, supra note 5; Louis Hyman, Debtor Nation: The History of America in Red Ink (2011); see also sources cited supra note 3.
[23] Kloeckner, supra note 2, at 108; cf. Stimilli, supra note 16; Samantha Ashenden & James Brown, Guilt: Introduction, 43 Econ. & Soc’y 1 (2014); Burkhard Liebsch, Schuld—Schulden—Verdanken: Ein Beitrag zur Revision des Verhältnisses von Moral und Ökonomie vor aktuellem Hintergrund, 102 Archiv für Rechts- und Sozialphilosophie 508 (2016).
[24] Cf. Graeber, supra note 1, at 8.
[25] Kate Padgett Walsh, Transforming Usury into Finance: Financialization and the Ethics of Debt, 4 Fin. & Soc’y 41, 46-53 (2018).
[26] Cf. Stimilli, supra note 16, at 116-32.
[27] Cf. Hillel Gamoran, Jewish Law in Transition: How Economic Forces Overcame the Prohibition Against Lending on Interest (2008).
[28] Kloeckner, supra note 2, at 109-10; cf. Lazzarato, supra note 22.
[29] Kloeckner, supra note 2, at 110; cf. Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (2012).
[30] O’Malley, supra note 5.
[31] Klaus Günther, The Productivity of Guilt in Criminal Law Discourse, in Guilt: A Force of Cultural Transformation 99, 118-19 (Katharina von Kellenbach & Matthias Buschmeier eds., 2022); Valerij Zisman, Making Guilt Productive: The Case for Restorative Justice in Criminal Law, in id. at 123.
[32] For a similar set-up, see Wamsley, supra note 4; cf. Herbert Morris, Persons and Punishment, 52 The Monist 475, 478, 483, 489 (1968); Zachary Hoskins, Fair Play, Political Obligation, and Punishment, 5 Crim. L. & Phil. 53 (2011).
[33] See, e.g., Dorothy S. Lund and Natasha Sarin, Corporate Crime and Punishment: An Empirical Study, 100 Tex. L. Rev. 285, 341-42 (2022).
[34] Wacquant, supra note 4; on the relationship of welfare and punishment, see Julilly Kohler-Hausmann, Getting Tough: Welfare and Imprisonment in 1970s America (2017); Elizabeth Hinton, From the War on Poverty to the War on Crime (2016); David Downes & Kristine Hansen, Welfare and Punishment in Comparative Perspective, in Perspectives on Punishment: The Contours of Control 133 (Sarah Armstrong & Lesley McAra eds., 2006); see also David Garland, The Punishment-Welfare Relationship: History, Sociology, and Politics, in The Oxford Handbook of Criminology 771 (Alison Liebling et al. eds., 7th ed. 2023), with further references.
[35] Immanuel Kant, Critique of Judgment § 59, at 225-30 (Werner S. Pluhar trans., 1987 [1790]).
[36] Arthur Kaufmann, Das Schuldprinzip: Eine strafrechtlich-rechtsphilosophische Untersuchung 78 (1961) (“innere Analogie philosophischer Begriffe,” Gefahr, “dass man die Seinsweise des Anschauungsgegenstands, dem das sprachliche Bild entnommen ist, mit derjenigen des gemeinten Gegenstandes gleichsetzt”) (author’s translation).
[37] George Lakoff & Mark Johnson, Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought (1999).
[38] James J. Bono, Why Metaphor? Toward a Metaphorics of Scientific Practice, in Science Studies: Probing the Dynamics of Scientific Knowledge 215, 225-26 (Sabine Maasen & Matthias Winterhager eds., 2001); cf. Arjo Klamer & Thomas C. Leonard, So What’s an Economic Metaphor?, in Natural Images in Economic Thought 20, 39-44 (Philip Mirowski ed., 1994).
[39] Tamara Bogatzi et al., Guiltily Indebted? How a Word Is Linked to Individual Borrowing, Applied Econ. Letters (2024) (https://doi.org/10.1080/13504851.2024.2302891).
[40] Martin V. Day & D. Ramona Bobocel, The Weight of a Guilty Conscience: Subjective Body Weight as an Embodiment of Guilt, 8 PLoS One: e69546 (2013) (https://doi.org/10.1371/journal.pone.0069546).
[41] Hong-Thi Liu et al., Out of Debt, Out of Burden: The Physical Burdens of Debt, 76 J. Experimental Soc. Psych. 155 (2018); cf. Hong-Thi Liu et al., Bidirectional Embodied Association Between Debt and Physical Burden, 165 J. Soc. Psych. 558 (2025).
[42] Bono, supra note 38, at 227-28.
[43] Jörg M. Schindler, Rechtsmetaphorologie: Ausblick auf eine Metaphorologie der Grundrechte 29 (2016).
[44] On constitutive metaphors, see Richard Boyd, Metaphor and Theory Change: What Is Metaphor For?, in Metaphor and Thought 356, 360 (Andrew Ortony ed., 1979).
[45] Cf. Susan Sontag, Illness as Metaphor & AIDS and Its Metaphors 89-92 (1991).
[46] Cf. Jörn Kiefer, Sünde/Sünder (AT), in WiBiLex (https://perma.cc/M8DP-3PBA), at 31-32 (2017); cf. G.H. Livingston, Guilt as Understood in the Old Testament, 26 The Asbury Seminarian 19 (1972); George P. Fletcher, Punishment, Guilt, and Shame in Biblical Thought, 18 Notre Dame J.L. Ethics & Pub. Pol’y 343 (2004).
[47] Cf. Philip Grierson, The Origin of Money, 1 Rsch. Econ. Anthropology 1, 12 (1978); Patricia Faraldo Cabana, Who Dares Fine a Murderer? The Changing Meaning of Money and Fines in Western European Criminal Systems, 25 Soc. & Legal Stud. 489, 494-96 (2016). Rudolf von Jhering, for example, describes the public “debt post” (Schuldpfahl ) as a “means of coercion” used against thieves and other debtors until they were released by their own or a third party’s payment, explicitly noting that the Germanic term “rna” denoted both a “guilty thief ” and a “ loan.” Rudolf von Jhering, Vorgeschichte der Indoeuropäer 78-86 (1894).
[48] Cf. Graeber, supra note 1, at 59; Roger W. Smith, The Economy of Guilt, 3 Pol. Theory 198, 200-02 (1975); Javier E. Díaz-Vera, From Cognitive Linguistics to Historical Sociolinguistics: The Evolution of Old English Expressions of Shame and Guilt, 1 Cognitive Linguistic Stud. 55, 72 (2014).
[49] Didier Fassin, The Will to Punish 47 (Christopher Kunz ed., 2018).
[50] Cf. George Lakoff, Metaphor, Morality, and Politics, Or, Why Conservatives Have Left Liberals In the Dust, 62 Soc. Rsch. 177, 179-82 (1995); cf. Alexander Velichkov, Fitting Guilt Without Blameworthiness, in 7 Oxford Studies in Agency and Responsibility 145, 146 (David Shoemaker ed., 2025) (“Moral Debt Account of guilt”).
[51] Georg W.F. Hegel, Philosophy of Right § 101 (S.W. Dyde trans., 1896 [1821]).
[52] Christian Starck, Diskussion, in Das strafende Gesetz im sozialen Rechtsstaat 95, 103 (Eva Schumann ed., 2010) (comment by Michael Pawlik); Michael Pawlik, Unrecht des Bürgers: Grundlinien der Allgemeinen Verbrechenslehre 106-07, 110, 16 (2012); cf. Michael Pawlik, Norm Confirmation and Identity Balance: On the Legitimacy of Punishing, 7 Critical Analysis L. 1, 33 (2020).
[53] Karl Binding, Die Normen und ihre Übertretung, Bd. 2: Schuld. Vorsatz. Irrtum., Teilbd. A: Zurechnungsfähigkeit. Schuld, at 267 n.3 (1914).
[54] Ernst-Joachim Lampe, Das Schuldmoment im deutschen Strafrecht, in Festschrift für Wolfgang Heinz 778, 780 (Eric Hilgendorf & Rudolf Rengier eds., 2012).
[55] Id.
[56] Björn Burkhardt, Schuld—Rechtliche Perspektiven: Rechtstheoretische und praktisch-empirische Überlegungen, in Schuld—Bearbeitung, Bewältigung, Lösung: Strukturelle und prozessdynamische Aspekte 57, 66 n.36 (Hermes A. Kick & Wolfram Schmitt eds., 2011).
[57] Lazzarato, supra note 22, at 30, 33.
[58] Jochen Bung, Rechtsformanalyse und Rechtskritik bei Paschukanis, in Sozialistische Straftheorie und -praxis in Europa 41, 48 (Georg Steinberg ed., 2018); cf. Graeber, supra note 1, at 52.
[59] Cf. Michel Foucault, Discipline & Punish: The Birth of the Prison 232-33 (Alan Sheridan trans., 2d ed. 1995 [1975]).
[60] Liebsch, supra note 23, at 517 (referring to Adorno, Latour, Levinas, Heidegger).
[61] Cf. Graeber, supra note 1, at 13.
[62] Id. at 14; see also id. at 13, 121 (focusing on morality, not criminal justice); cf. Garland, supra note 19, at 275 (“[T]he symbols of penality seem to resonate with the personal memories and associations of individuals in particular ways, producing attitudes and involvements which would not otherwise arise.”).
[63] Nils Christie, Conflicts as Property, 17 Brit. J. Criminology 1 (1977).
[64] Id. at 3-4, 7-10; cf. William R. Wood & Masahiro Suzuki, Are Conflicts Property? Re-Examining the Ownership of Conflict in Restorative Justice, 29 Soc. & Legal Stud. 903 (2020).
[65] On this discussion, see, e.g., Rocío Lorca, Punishing the Poor and the Limits of Legality, 18 Law Culture & Human. 424 (2022) (with further references); Rocío Lorca, Excusing Unjustified Punishment: On Doing Criminal Justice in Unjust Societies, 1 Mod. Crim. L. Rev. 50 (2024); Nicola Lacey, Criminal Justice and Social (In)Justice, in Structural Injustice and the Law 168 (Virginia Mantouvalou & Jonathan Wolff eds., 2024); Gustavo A. Beade, Who Can Blame Whom? Moral Standing to Blame and Punish Deprived Citizens, 13 Crim. L. & Phil. 271 (2019); Matt Matravers, “Who’s Still Standing?” A Comment on Antony Duff’s Preconditions of Criminal Liability, 3 J. Moral Phil. 320, 330 (2006).
[66] Günther Jakobs, Die Schuld der Fremden, 118 Zeitschrift für die gesamte Strafrechtswissenschaft 831, 844-45 (2006).
[67] On the singularity of justice in the works of Derrida and Levinas, see Mariana Valverde, Derrida’s Justice and Foucault’s Freedom: Ethics, History, and Social Movements, 24 Law & Soc. Inquiry 655, 658 (1999) (with further references).
[68] 2 Johann H. Abicht, Die Lehre von Belohnung und Strafe in ihrer Anwendung auf die bürgerliche Vergeltungsgerechtigkeit überhaupt, und auf die Criminal-Gesetzgebung insbesondere, wie auch auf Moral, Theologie und Erziehungswissenschaft 21 (1797).
[69] Id. at 21.
[70] Id. at 27, 30, 47.
[71] Id. at 85.
[72] This is a general limitation of the current debate. See Gabriel Brollo Fortes & Patricia Faraldo Cabana, On the Collateral Consequences of Fine Default: The Brazilian Case Study, 64 How. J. Crime & Just. 129, 129-31 (2024); Máximo Sozzo, Inequality, Welfare and Punishment: Comparative Notes Between the Global North and South, 19 Eur. J. Criminology 368 (2021).
[73] Cf. Gustavo Beade, Impoverished and Incarcerated: The Ethics of Converting Fines into Community Service, 2 Mod. Crim. L. Rev. 1 (2025); Mao-hong Lin, Location, Relocation, and Dislocation: Sanctioning the Poor Through Document Service in Taiwan’s Criminal Legal System, 2 Mod. Crim. L. Rev. 44 (2025); Chikondi M. Mandala & Sarai Chisala Tempelhoff, Monetary Sanctions and Poverty in Malawi’s Criminal Justice System, 2 Mod. Crim. L. Rev. 60 (2025); Abhinav Sekhri, Retaining the “Premium on Poverty”: India’s Perplexing Persistence with a Monetary Bail Regime, 2 Mod. Crim. L. Rev. 80 (2025).
[74] For a critical engagement, see Nico Hanke, Kriminalisierung der Armen für die Ärmsten? Eine kriminologische und strafverfassungsrechtliche Untersuchung zu § 170 Abs. 1 StGB im System der Existenzsicherung von Kindern (2024).
[75] See generally Peter Edelmann, Not a Crime to Be Poor: The Criminalization of Poverty in America (2017); Karyn Gustafson, The Criminalization of Poverty, 99 J. Crim. L. & Criminology 643 (2009); Christopher R. Larrison, The Criminalization of Poverty, in Social Work, Criminal Justice, and the Death Penalty 86 (Lauren A. Ricciardelli ed., 2020).
[76] Shelley A.M. Gavigan & Dorothy E. Chunn, Welfare Law, Welfare Fraud, and the Moral Regulation of the “Never Deserving” Poor, 13 Soc. & Legal Stud. 219 (2004).
[77] Cf. Andrew Dunn, The Poverty-Crime Nexus Revisited: Absolute Poverty, Relative Poverty, and Crime Rates in 105 Countries, 49 Int’l J. Compar. & Applied Crim. Just. 107 (2025).
[78] On changes in recent times, see Zohra Ahmed, The Right to Counsel in a Neoliberal Age, 69 UCLA L. Rev. 442 (2022); Tobias Schrank, Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany, 2011 Oxford U. Compar. L.F. 3 (https://perma.cc/M2KV-NGJH).
[79] Cf. Jana Kolsch, Sozioökonomische Ungleichheit im Strafverfahren (2018).
[80] Cf. Stephen B. Bright, Legal Representation for the Poor: Can Society Afford this Much Injustice?, 75 Mo. L. Rev. 683 (2010); Magali Duque & Abigail McKnight, Understanding the Relationship Between Inequalities and Poverty: Mechanisms Associated with Crime, the Legal System and Punitive Sanctions, CASEpaper 215/LIPpaper 6, at 26-30 (2019) (https://perma.cc/J4P3-M3DW).
[81] See, e.g., Helen A. Anderson; Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J.L. Reform 323 (2009); Michael Bohlander, Legal Advice in Criminal Proceedings in the Federal Republic of Germany, 3 Crim. L.F. 401, 412 (1992); Anna H. Albrecht & Anne Schneider, Germany—Between Laissez-Faire and Literal Regulation: The German Approach to the Implementation of the Directives on Defence Rights, in Effective Protection of the Rights of the Accused in the EU Directives 114 (Giuseppe Contissa et al. eds., 2022); cf. Marshall J. Breger, Legal Aid for the Poor: A Conceptual Analysis, 60 N.C. L. Rev. 281 (1982); Croissant v. Germany, App. No. 13611/88, ¶¶ 12-19, 33-38 (Eur. Ct. H. R. Sept. 25, 1992) (https://perma.cc/S48K-ZBHU).
[82] See R.A. Duff, Punishment, Communication, and Community 147 (2001).
[83] Cf. Gaye Lansdell et al., Exposing the Injustice of Imprisonment for Fine Default: The Taha Case and Achieving Social Justice, 38 Alt. L.J. 160 (2016); Derek A. Westen, Fines, Imprisonment, and the Poor: Thirty Dollars or Thirty Days, 57 Cal. L. Rev. 778 (1969).
[84] For more detailed discussion, see Morten Boe, A Modern Debtors’ Prison? Imprisonment for Unpaid Fines and Socioeconomic Inequality, MCLR+ (crimlrev.net) (Sept. 24, 2023) (https://perma.cc/5RX2-8F2F).
[85] Hans-Jörg Albrecht, Day Fines in Germany, in Day Fines in Europe: Assessing Income-Based Sanctions in Criminal Justice Systems 85, 109-10 (Elena Kantorowicz-Reznichenko & Michael Faure eds., 2021).
[86] Id.; cf. Mitali Nagrecha, The Limits of Fairer Fines: Lessons from Germany, Harvard Law School, Criminal Justice Policy Program (2020) (https://perma.cc/C3CW-4S3W).
[87] Cf. Markus D. Dubber, Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 46 Stan. L. Rev. 547, 559-60 (1997); Raluca Enescu, Wrongful Convictions in Summary Proceedings: A Comparison of Penal Orders in France, Germany and Switzerland, 106 Monatsschrift für Kriminologie und Strafrechtsreform 184 (2023).
[88] Cf. Boe, supra note 84; see also Jean Galbraith et al., Poverty Penalties as Human Rights Problems, 117 Am. J. Int’l L. 387 (2023).
[89] A recent reform modified the conversion rate between daily fines and days of imprisonment (from 1:1 to 2:1) and introduced obligations to inform and assist defendants in avoiding default imprisonment. Nevertheless, it remains doubtful whether these changes sufficiently address the structural issues underlying the EFS—particularly the problematic entanglement of impersonal financial debt with the deeply personal sanction of imprisonment. Cf. Boe, supra note 84.
[90] But see, e.g., Pat O’Malley, Theorizing Fines, 11 Punishment & Soc’y 67 (2009) (with further references); R. Barry Ruback & Mark H. Bergstrom, Economic Sanctions in Criminal Justice: Purposes, Effects and Implications, 33 Crim. Just. & Behav. 242 (2006); Ivó Coca-Vila, What’s Really Wrong with Fining Crimes? On the Hard Treatment of Criminal Monetary Fines, 16 Crim. L. & Phil. 395 (2022); cf. Patricia Faraldo Cabana, Money and the Governance of Punishment: A Genealogy of the Penal Fine (2017); Nicole Bögelein, “Money Rules”: Exploring Offenders’ Perceptions of the Fine as Punishment, 58 Brit. J. Criminology 805 (2018); Julia Quilter & Russell Hogg, The Hidden Punitiveness of Fines, 7 Int’l J. Crim. Just. & Soc. Democracy 9 (2018).
[91] For an in-depth discussion, see Faraldo Cabana, supra note 90.
[92] Cf. O’Malley, supra note 5.
[93] Lindsay Bing et al., Incomparable Punishments: How Economic Inequality Contributes to the Disparate Impact of Legal Fines and Fees, 8 RSF: J. Soc. Sci. 118 (2022).
[94] Cf. Alexes Harris et al., Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 Am. J. Socio. 1753 (2010).
[95] Kirsten D. Levingston & Vicky Turetsky, Debtors’ Prison: Prisoners’ Accumulation of Debt As a Barrier to Reentry, 41 Clearinghouse Rev. J. Poverty L. & Pol’y 187, 188 (2007); Harris et al., supra note 94, at 1756.
[96] Annette Olesen, Debt as a Criminal Risk Factor in Denmark, 6 Oñati Socio-legal Series 676, 679, 697-99 (2016); Rosa Koenraadt & Miranda Boone, Tackling Debt Problems in the Criminal Justice System: A Study into the Trajectories and Bottlenecks of Imposed Financial Requirements in the Netherlands, Criminology & Crim. Just. (2024) (https://journals.sagepub.com/doi/full/10.1177/17488958241276179); John Todd-Kvam, An Unpaid Debt to Society: How “Punishment Debt” Affects Reintegration and Desistance from Crime in Norway, 59 Brit. J. Criminology 1478 (2019).
[97] Cf. Anderson, supra note 81; Levingston & Turetsky, supra note 95, at 188.
[98] Cf. Michael Kilchling, Strafen über Strafen: Strafrechtliche und nichtstrafrechtliche Zusatzsanktionen in Deutschland, in Unterwegs in Kriminologie und Strafrecht: Exploring the World of Crime and Criminology (Festschrift für Hans-Jörg Albrecht zum 70. Geburtstag) 1075 (Rita Haverkamp et al. eds., 2021); Torie Atkinson, A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prisons, 51 Harv. C.R.-C.L. L. Rev. 189, 217 (2016); Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (2019).
[99] Gercoline van Beek et al., The Relationship Between Debt and Crime: A Systematic and Scoping Review, 13 Eur. J. Prob. 41 (2020); Olesen, supra note 96; Machteld Hoeve et al., A Systematic Review of Financial Debt in Adolescents and Young Adults: Prevalence, Correlates and Associations with Crime, 9 PLoS ONE: e104909 (2014) (https://doi.org/10.1371/journal.pone.0104909).
[100] Cf. Douglas N. Evans, The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration, Research & Evaluation Center, John Jay College of Criminal Justice, City University of New York (2014) (https://perma.cc/X28B-6G76).
[101] See also David Garland, Punishment and Welfare: Social Problems and Social Structures, in The Oxford Handbook of Criminology 77, 94 (Alison Liebling et al. eds., 6th ed. 2017).
Suggested Citation: Morten Boe, Interrelations of “Debt” and “Guilt” in Criminal Law: Reconsidering a Nietzschean Narrative in the Context of Late Capitalism, 2 Mod. Crim. L. Rev. 14 (2025).