Prisons and “alternatives sentences”: from political rifts to empirical delusions
In order to circulate local problematics and solutions more broadly, we have partnered with the French economics journal Regards Croisés sur l'Économie. We will select some of their articles to re-publish them here on Kinea along with translations in our usual languages and notes and comments from the team.
Thanks to this new partnership, we can offer you the following article, taken from the last issue dated from the first semester of 2017. The author analyses sentences called “alternatives to prison”1 and touches upon the question of their effective use. The debate is focused here on the French issue, but we however think that the topic and the article's analysis thereof might be of interest to people beyond French borders.
The political dissensions remain particularly intense on carceral matters, torn apart between a right wing that tries to appear repressive and a left wing party criticized for being naive utopists. The legal reform of August 15th 2014, on “sentence individualisation and reinforcement of the efficiency of penal sanctions” gave a recent illustration to this opposition.2 More broadly, the accusation that the government is trying to “empty its prisons” has been refuted by the carceral growth since the last presidential term: on the 1st of July 2016, there were 2,000 more inmates than on the 1st of July 2012, making it a record-breaking 69,375 inmates. Seeing this 15-year-long almost continuous increase, the question of said “alternative sentences” needs be asked. What really is their impact in the vastness of sentences and how are they applied? Besides the political theatre of partisan differences, empirical studies uncover the delusions that support such oppositions. Despite the variety of penal sentences, most of them do not replace prison but add to it instead. More so, the lack of means attributed in order to carry out those sentences, along the evolution of carceral policy make those measures not as much as an alternative to our current model as its prolongation in an unconfined environment.
An unreadable scale of sentences that supports a widening of the penal net3
Debates on this penal reform have lingered on a new sentence named “penal constraint”, yet there has been, for a long time in fact, a large choice of measures intending to limit decisions of incarceration at each steps of the penal procedure.4 Those have however been created then modified for more than fifty years, stitched and altered on the whim of political contexts and events, lacking both coherence and a global vision. Their clarity to the public, convicts, and even magistrates is thus severely hindered. Setting aside the complexity of their legal classification, one can empirically distinguish four kind of measures: financial penalties, incarceration, probation, and finally educational, interdiction or confiscation measures.
Fines are the vast majority of financial sentences, to which there is to be added day-fines5 (Table 1). Together, they make 40% of sentences in 2015. Among incarcerations, there are two main types: regular (22% of sentences6) and suspended (17%) (sentences that will be executed only after another condemnation). Sanctions that take place outside of prison are those most associated with the term “alternative” to jail. Two thirds of them are suspensions with probation, community service being the remaining third. With 959 penal constraints given in 2015, their proportion is infinitesimal (0.2%). Together they represent 12.5% of sentencing. The remainder (8.5%) is other types of decisions: about half of them are educational measures targeting minors, the rest being suspension of driver license, various interdictions, and item confiscations. Finally, in 0.5% of cases, a socio-judicial monitoring is mandated. This sanction is reserved for major felonies and crimes, often in addition to a prison sentence. In less than 1% of condemnations, the judge gives a waiver on the sentence.
|Fines and day-fines||229,025||40%|
|Alternative sentences (probation, community service, penal constraints)||71,631||12,5%|
|Others (educative measures, interdictions, waived sentences…)||50,244||8,5%|
|Total sentences in 2015||573,320||100%|
Table 1: Distribution of sentences in 2015, sorted by sentence type (in France and French overseas territories). Source: French Ministry of Justice, from sentencing records.7
In France, except for the most serious crimes (0.5% of sentences), which are followed with incarceration in most cases, penal decisions are dominated by financial sanctions. Proportion of alternative sentences have remained relatively constant throughout the past ten years, the recent decline of probation balancing the increase of community service sentences. None of those measures have however impeded incarceration, whose proportion in sentences in 2015 has been the highest of the last thirty years. Everything hints at those alternative sanctions outside of prison being no real alternatives. If those sanctions did not exist, most convicts subjected to them would probably not have been sentenced to prison, but more likely to a suspended sentence. Far from being a softening of justice, those measures are more of a widening of the penal net.
Sentencing adjustment options are unproductive, abstruse and unequal
The sentencing is only the beginning of enforcement, one of the main characteristic of modern sentences being their adjustability. There is thus different options to commute or adjust a sentence of imprisonment. Conditional liberation (similar to parole), created in 1885, is one of the oldest such adjustments, but its usage does tend to thin out. Conditional liberation means that, under conditions of a regular follow-up and some obligations and restrictions, an inmate can be freed from their sentences if they have served half of its term (two third in case of re-offense). This process is made to allow for progressive social reintegration and to limit risks of re-offense.
Other such adjustments targeting “short-term” sentences specifically have flourished since the mid-20th century. They aim to avoid “incarceration shock” and a carceral overgrowth. If an immediate incarceration order is not given, a convict sentenced for less than two years (one year if re-offending) is called in a month later by the judge of penal application to consider an outside-prison reinsertion project (10% of the cases), semi-freedom8 (15%) or the usage of an ankle monitor (75%). Furthermore, an inmate that has less than two years of sentence remaining can ask to benefit from those adjusted sentences. The goal is to avoid an “abrupt exit”, without accompanying, to focus instead on a progressive and monitored liberation.
If in principle those adjustments are truly alternatives to prison in that they free some inmates from prison and prevent others from entering it, they however create many practical difficulties. First, the rise of the severity of prison sentencing is correlated with the widening applicability of adjustments in 2004 and 2009. It seems judges anticipate those adjustments and thus give harsher sentences to forbid them to the convicted. It is also understandable that public opinion has difficulties with the idea that a several month long prison sentence can be carried out differently, even more so that prison term lesser than 6 months can be turned into day-fines or collective service, adding even more to the confusion. Lastly, the main criteria for an adjustment lies on having either a job or a professional project that is deemed robust, which amplifies both social and penal inequalities. Opportunities for convicts with less resources (educational, economic, relational) than others to have their sanction adjusted are hence diminished, adding to the fact they are already judged more harshly, since for instance, their access to a good lawyer is impeded and they are more often directed to fast-track judicial procedures (Gautron and Retière, 2016; Herpin, 1997).
From prison to alternative sanctions: of the continuity of penal policy
However, the criticisms of a widening of the penal net and of biases in the adjustment procedure are not sufficient arguments by themselves, and the debate still remains open. If those alternatives do not supplant prison from a statistical viewpoint, their implementation however may stem from an alternative conception of sentencing. For the Council of Europe, probation “includes a range of activities and interventions, which involve supervision, guidance and assistance aiming at the social inclusion of an offender, as well as at contributing to community safety”.9 In practice, those follow-ups mean that convicts have periodic consultations with their penitential advisors for reintegration and probation. Those counselors, working with several parties, are supposed to implement a monitoring and support plan with a socio-educative purpose. They are also responsible for of enforcement of a strict set of obligations imposed by the judge, of which the most frequent are psychological treatments, keeping a job or seeking for one, or compensation to the victims if any. Breaking these conditions, or reiterating, might revoke this agreement partially or totally, and lead to incarceration.
While the penitential administrations has about 27,000 warden for 69,000 inmates, penitential counselors are no more than 3,500. A third of them work in prisons, which leaves around 2,300 counselors for 165,000 convicts serving sentences outside of prison in July 1st 2016,10 to which there is to be added 11,000 people under electronic bracelet. Furthermore, the status of this staff has drastically changed after a reform made mid-1990: if this profession has always been vastly feminine, it was mainly composed of social workers, while nowadays two thirds of the new recruits are hired after a law degree, without any experience of social work. In addition, managerial reforms have recently led to an ever growing specialisation of their missions, disregarding versatility, and to a standardisation of their interventional tools, to the detriment of a relational approach.
In those conditions, probation interviews are narrowed to a formal verification of the obligations, and to an evaluation of re-offense risks, instead of establishing a true relationship of social and reintegration assistance, together with civil society and socio-juridical associations. In the current state of things, everything leads to believe that there is no different natures of sentences, only different degrees of severity, between prison sentences and alternative sanctions. In one case or another, the implementation of those measures by the penitential administration is dependent over three time-anchored principles: discipline that strives to normalise behavior, control as a limitative power restricting in both space and time, and accountability that makes the perpetrator the main responsible of the success or failure of their own sanction.
Be it sentences, possibility of modifications or their conditions for being applied, the phrase “alternative to prison” is in many respects a delusion. To limit incarceration, the real challenge is not in the application of sentences, but in the transformation of penal policy before sentencing. Besides increasing the budget given to justice, and limiting the use of pre-trial detention to extreme cases, three main motors can be named: depenalisation of some infractions; forbidding prison sentences for some offenses; capping incarceration time in other cases. Far from being soft, such dispositions enforce a better-performing justice on the professional side, and less inequality on the convicts' side, and thus a truly more efficient justice.
Gautron V. et Retière J-N. (2016), “La décision judiciaire : jugements pénaux ou jugements sociaux ?”, Mouvements, 88(4), p. 11-18. Herpin N. (1977), “L’application de la loi : deux poids, deux mesures”, Paris, Seuil. De Larminat X. (2014a), “Hors des murs. L’exécution des peines en milieu ouvert”, Paris, PUF. De Larminat X. (2014b), “Un continuum pénal hybride. Discipline, contrôle, responsabilisation”, Champ Pénal, 11 [available online: http://champpenal.revues.org/8965].
Gautron V. et Retière J-N. (2016), “La décision judiciaire : jugements pénaux ou jugements sociaux ?”, Mouvements, 88(4), p. 11-18.
Herpin N. (1977), “L’application de la loi : deux poids, deux mesures”, Paris, Seuil.
De Larminat X. (2014a), “Hors des murs. L’exécution des peines en milieu ouvert”, Paris, PUF.
De Larminat X. (2014b), “Un continuum pénal hybride. Discipline, contrôle, responsabilisation”, Champ Pénal, 11 [available online: http://champpenal.revues.org/8965].
The French word “prison” is a broad term in French that encompasses both jail and prison (i.e. an establishment to withhold outlaws). I decided to use the term prison as it fits closer, the French word “prison” more often depicting the incarceration of major crime perpetrators. It is worth noting however that the French word does not have the same connotation of very high security and long-term stays (Note from the translator). ↩
Reform supported by Minister of Justice Christiane Taubira from the socialist government of Prime Minister Manuel Valls, under the presidency of François Hollande (2012-2017) (Note from the editors). ↩
Widening, or extension, of the penal net is an expression meaning that new penal measures lead to the sentencing of perpetrators previously left free, or harsher sentencing against them. ↩
We will not discuss alternatives to trial (warning, reparations, penal mediation...), neither will we discuss alternatives to pre-trial detention (judicial control, home custody under electronic surveillance) to focus exclusively on penal sanctions as well as their applications. ↩
The fine is divided into several parts, each part corresponding to a day to be served in prison if left unpaid. ↩
One time in five, those sanctions mix prison sentences with another measure (mainly a suspended sentence with probation). ↩
Excerpt from Ministère de la Justice (2016), Les condamnations en 2015, Sous- direction de la statistique et des études. Categories have been merged by the author. ↩
The inmate can go out during the day in order to work or to follow professional formations, but must come back in prison and sleep in their cell. ↩
The huge disparity between people serving alternative sanctions outside of prison compared to sentencing of this type is explained by the usual length of those measures, often in years. This number also counts conditional liberation. ↩