CSM: decision making , implementation and breach . AN OVERVIEW OF FRENCH Law

CSM: DECISION MAKING, IMPLEMENTATION AND BREACH. AN

OVERVIEW OF FRENCH LAW

Martine Herzog-EvansUniversity of Reims, Law Faculty, France

http://www.univ-reims.fr http://herzog-evans.com

FRONT DOOR, BACK DOOR, MIXED CSM

Under French law there are:

Front door measures. i.e. decided by penal courts and then managed either/or/and by the juge de l’application des peines and the probation service (service pénitentaire d’insertion et de probation, aka SPIP)

Back door measures. i.e. pronounced either by the Jap, the Tap (tribunal with three judges for more complex cases) or the probation service

Mixed measures which can be either front door or back door measures.

Safety measures. Measures which can be used after a custody sentence has been completed, where no back door measure has been pronounced, and which consist in mandatory supervision in the community and can involve a form of incarceration.

Safety periods., i.e. a form of tariff which can apply for custody sentences as short as 5 years and can be mandatory for sentences of at least 10 years, for the most serious offences.

Offences - contraventions. e.g. parking tickets, ‘domestic

animal beating’, slapping someone, being in a school’s premises without a legitimate reason (no imprisonment : mostly fines)

- délits. e.g. robbery, minor forms of burglary, violence on a human beings, sexual assault but not rape, taking drugs, minor forms of drug trafficking, arson (imprisonment max. 10 years ; most CS) ;

- crimes. e.g. homicides, bank robbery, rape, torture, serious drug trafficking, terrorism (20, 30 year sentences; life. Note that criminal courts have jurors)

Front door and back door measures

FRONT DOOR alternative sentences : 1) Fines 2) ‘Peines restrictives et privatives de droits –

i.e. sentences which deprive of a right (suppression, suspension of driving licence ; of the right to hunt ; of the right to possess a commerce…). There are numerous and can only

apply to ‘délits’ or ‘contraventions’ is they are the sole punishment.

3) ‘Peines restrictives de liberté’ - i.e. sentences which restrict a freedom. These correspond to CS.

FRONT DOOR alternative sentences – Peines restrictives de liberté

= Three major ones ; a few less used ones ; one concerning sexual and violent offenders

THREE MAJOR ONES: Sursis simple (suspended sentence without

supervision) Sursis avec mise à l’épreuve (suspended

sentence with supervision – called probation) Travail d’intérêt général (unpaid community

work – without supervision)

FRONT DOOR alternative sentences – Peines restrictives de liberté

- Less frequently used ones : - sursis-Tig : a combination of suspended sentence with

supervision and unpaid community work ; - ajournement de peine: suspension not of the sentence,

but of sentencing itself, with either supervision or an injunction for a year max. then 2nd trial decides to sentence/not sentence ;

Interdiction de séjour’: The sentenced person is prohibited from appearing in certain areas

Applies only to foreigners : Interdiction du territoire : forbids them to be in France for

a maximum of 5 years or even in some cases, indefinitely

FRONT DOOR alternative sentences – Peines restrictives de liberté

WHO does WHAT ?

- Penal tribunal : CS (note : no sentencing report nor any debate or

explanation as of the sentence itself) - Jap : supervision of the CS (i.e. modifying

obligations, sanctioning in case of breach....) - With unpaid community work : the Jap cannot

sanction breach. He must refer the case to a penal tribunal.

BACK DOOR community measuresfor people under custody

Measures pronounced by the Jap without a court hearing Credit remission (= credited when the sentence is definitive ;

revoked in case of bad conduct in prison) Supplementary remission (= credited once a year, or once a

month ; based on socialisation efforts such as training, education, work, paying damages, getting treatment – sexual offenders cannot get any if they do not get treatment)

Temporary leave (exist in all shapes and sizes - from a few hours (e.g. to go to hospital or see prospective employer) to several days (the most frequent cause being : maintaining family contacts)

Temporary leave under escort (for exceptional and serious causes like death in the family)

BACK DOOR community measuresfor people under custody

Measures taken by the Jap or the Tap with a court hearing

‘Conditional liberation’ (liberation bef. the end of the sentence under supervision)

‘Sentence suspension’ - ordinary (suspension for a max of 4 years for sentences up to 2 years only, for medical, social or family reasons)

‘Medical sentence suspension’ (custody sentence suspension for dying people or people in a severe medical condition incompatible with detention – ref. to art. 3 EHRC)

MIXED community sentences and measures

Decided either by the penal courts (front door) or by the Jap, the Tap, sometimes

even via the SPIP (back door), =measures up to 2 years duration and always

with supervision) Electronic monitoring Semi-freedom Placement in the community Sentence fractionation (week-end detention

for a max. Of 4 years) Conditional release (parole)

MiXED MEASURES– Sexual offenders

CS used for sexual offenders =‘Suivi socio-judiciaire’ (literally : social and judicial

supervision) = mandatory treatment with supervision. Can be an alternative sentence, in lieu of prison or only

implemented after custody. Is always first pronounced by a penal court, then implemented by

a Jap and supervised by the Jap and the SPIP. Is coupled with a(nother) prison sentence which applies only in

case of breach during the community supervision. Contains mandatory treatment:

starts in prison (when there also is custody) – if the person refuses treatment : no remission.

Then continues in the community : the psychiatrist or psychologist sends reports (without any details) to a doctor (‘coordinating’ MD) who in turn sends reports to the Jap – but Law march 10, 2010 : direct contact possible.

Type of supervision Unification of all obligations (Law, March 9, 2004). The same

obligations apply to back door or front door and the law of March 10, 2010, has extended this to sexual and very violent offenders.

First : mandatory control measures – article 132-44 Penal code (e.g.: obligation to go to meetings with probation officer or Jap ; to ask Jap’s permission to go abroad ; to ask permission to change job or residence...) – note in France : PO have discretion to decide on meetings frequency – Jap used to, but cannot any more (2011) give orders in this respect.

Second : court, Jap, Tap, choose amongst 19 optional (for the court) obligations – article 132-45 Penal code (e.g. obligation to work, get training or education, treatment, pay damages, fine, alimony, prohibition to go to bars, to get close to ex’ or victim’s residence, to talk publicly about the offence...).

In practice they do not add too many. The most frequents are treatment/work or training/damages/residence.

No programme but for group work with sexual and domestic violent offenders.

WHO DOES WHAT and HOWdecision making

Jap’s decision without court hearing = Decision is made by the Jap in prison, with only prison authorities and public prosecutor present = for remission, remission withdrawal; and furlough.

Jap’s or Tap’s decision with court hearing- bifurcation(Jap only) art 723-15of the PPC (person has been sentenced up to 2

years, is not in custody yet = obligatory referral to Jap who can pronounce a CM (EM, CL, SF, PC, sursis-tig) – court hearing takes place at the tribunal ; sentenced person and his solicitor + prosecutor present.

- Release inmates (under various measures: : EM, LC, suspension, SL, PE): Jap or Tap depending on sentence’s length = court hearing in prison with public prosecutor, inmate and his solicitor are present + often the prison governor

- Sanction of breach (see slide below)

Jap also can

Jap also can see offenders to see how things are (rare); notify obligations (often at the beginning of a measure); do a ‘recadrage’ (ie a reminding of the law) to give the offender in breach a last chance

Investigations are made by SPIP or third sector

WHO DOES WHAT and HOWprobation services

SPIP are in charge of supervision (essentially one-to-one artisanal)

They do investigations and write reports for the JAP They won’t do PSR any more (Law March 2012); the third sector will

Since law Nov. 2009 they also propose release measures (EM, CL, SF, PC)

- ‘SEFIP’ to the prosecutor who transfers to the Jap who is expected to sign, this for offenders having up to 2 years detention left = no (court) hearing, no solicitor, no project prepared by inmate = art. 723-19 s. PPC);

‘PSAP’: To the prosecutor who decides (no Jap). EM exclusively in a HDC very rigid form (only 2 to 4 hours out). Concerns inmates who have 4 months left. No supervision in practice = art. 723-28 PPC.

WHO DOES WHAT and HOWmodifying obligations

Traditional : Jap modifies the obligations in his tribunal, without any court hearing, unless the prosecutor asks for one. An ordinance with explanations (‘motivation’) is nonetheless mandatory.

Jap can also delegate to prison governors or Directors of SPIP, modification of hours for curfew (EM) or presence in prison (for semi-freedom and placement in the community). No court hearing nor any motivated ordinance.

WHO DOES WHAT and HOWBreach

Extremely complex field

Sometimes a penal court is competent and the sanction is additional custody (eg : unpaid community work)

Sometimes the penal court pre-determines a sentence which the Jap implements (eg : social and judicial supervision)

Most frequent: measure is revoked by the Jap and the person is recalled to custody for what was left of the sentence (remission, CL, SL, PC, EM, suspended sentence) or for the duration of the fictitious prison sentence which was originally decided (suspended sentence with supervision, sursis-Tig)

In all cases (except with ‘SEFIP’) there is a court hearing, with prosecutor, the person and the solicitor are present. Appeal always possible. Then court of cassation.

BREACH - breach defined by law is: usually violation of obligations

or reoffending.

- large variety of sanctions (recall to custody, new sentence, tightening or adding obligations, prolonging the measure...).

- police detention possible to investigate beach (rare)

In practice: always a ‘reminding of the law’ – rather lenient practice as both PO and Jap concerned by the consequences attached to custody + Jap take circumstances and complexity of cases (e.g. breach but other things are positive) into account.

SAFETY MEASURES As of two laws (Dec.12, 2005 and Feb. 25, 2008) : creation of safety measures

like in Canada, Germany, Belgium, Holland... The idea is to supervise ex inmates when they are released – usually retroactive

(but see EHRC, C versus Germany, Dec.17, 2009) and since 2008, can be perpetual. Safety measures are not CM; they are not sentences either.

Thus for ‘dangerous offenders’, there is no hope for a traditional community measure and earlier release.

Types of SM: - mobile EM (with conditional release, judicial surveillance, socio-judicial supervision or

safety surveillance) - judicial surveillance - safety surveillance - ‘safety detention’ (only one case and only lasted two months : courts resist liberticidal

law) - home detention

Tap responsible for the first two. Special courts for the last three. Court hearing, procedural guarantees, but problem with identifying who is

‘dangerous’ Supervision : originally only control with no social dimension – social dimension

added with law March 10, 2010.

New trends in French CSMI – legislative trends

More safety measures for ‘dangerous’ offenders’ – thus less CM for them = Jap and Tap are considered not cautious enough.

Demand for clinical criminology but no one in sight to take up the job Tough on crime policies = more people under custody +more demand for CM

for not dangerous or less dangerous offenders +Jap and Tap are considered too cautious = transfer to SPIP + more generally another type of bifurcation in Pratt’s sense (Punishment and Civilisation, Sage, 2002: 166), i.e.:

- serious offences/offenders: harsher treatment (and release harder) - less serious/not serious offenders get community sentences (and get processed

through SEFIP).

EM as the new desirable tool for all purposes. Comes in four different shapes - in lieu of pre-trial detention = incrasingly frequent - as a sentence: rare - as a JAP release or bifurcation measure: frequent (long hours out/compatible

with life/with supervision) - SEFIP: release measure without supervision nor reentry prep./incompatible with

social life/no supervision

New trends in French CSMII – probation services

Regression of the SPIP’s capacity to supervise effectively as they are loaded with other tasks (judicial decision making, group therapy...)

As a result often don’t do the investigations (or too late or useless) they’re supposed to do.

Social work has virtually disappeared (word social work deleted from PPC) but for older PO and third sector

No evidence based-practices but the traditional resistance to criminology is starting to wane.

Serious problems with local and regional management: management often comes from prisons (eg prison governor) and have poor management competences and/or don’t know probation. + lack of national policy in this regard

Clearly training remains an issue. The Prison School of Agen needs reforming

Recruitments needs changing as well: too many lawyers, not enough of skills which actually count.

New trends in French CSMIII – Interaction between practitioners

Jap and PO/SPIP need each other and need to interact. Yet serious problems causes by complex set of reasons: - everyone overloaded and without means - JAP and SPIP now have divergent goals (JAP are supposed to

balance reinsertion, prevention of reoffending and victims’ interests = art. 707 of PPC) whereas SPIP are told by their central admin that only reoffending counts

Since 1999 SPIP have been in different buildings = people lost their common culture

SPIP belong to prison services (which are super powerful for various reasons) which have their own – carceral – agenda: release inmates at whichever cost and process more and more people

National headquarters of prison services fuel a trench war between JAP and PO which did not really exist in the field

Short Bibliography Research reports Dindo, ‘Sursis avec mise à l’épreuve: la peine méconnue. Une analyse des pratiques de probation en

France, Etude pour la Direction de l’administration pénitentiaire, PMJ1, mai 2011 Lhuilier, Changements et construction des identités professionnelles : les travailleurs sociaux

pénitentiaires, Rapport final, juillet 2007

Books F. Desportes et F. Le Gunehec, Droit pénal général, 13e éd., Economica, 2009 PONCELA, Droit de la peine, 2e éd., « Thémis », PUF, 2001 BOULOC, Droit de l’exécution des peines, 4e éd., Dalloz, 2011 STAECHELÉ, La pratique de l’application des peines, Litec, 1995 LAVIELLE, JANAS, LAMEYRE, Le guide des peines, 5e éd., Guides Dalloz, 2012 HERZOG-EVANS, Droit de l’exécution des peines, 4e éd., Dalloz, 2012 MBANZOULOU,  BAZEX, RAZAC, ALVAREZ (EDS;), Les nouvelles figures de la dangerosité, L’Harmattan,

2008

In English: M. Herzog-Evans, “Probation in France: Some things old, some things new, some things borrowed,

and often blue », Probation Journal 2011, n° 58(4), pp. 345-354 M. Herzog-Evans, “Desisting in France: What probation officers know and do. A first approach »,

Ejprob, 2011, vol. 3(2), pp. 29-46

(longer word version on demand)