Although this blog focuses on criminal justice and substance misuse in the UK, about a quarter of subscribers are from other parts of the world and I’m always interested to hear of new initiatives from around the globe.

Today’s post is by Professor Martine Herzog-Evans (@ProfMEvans) who shares findings from a recent study into a French initiative to release prisoners on parole more efficiently in order to reduce the prison population, a subject of particular interest for the Parole Board for England and Wales in its attempt to tackle its back-log.

“Bad Fast” versus qualitative resettlement

I conducted a research study from October 2014 to December 2016 with a team of 20 Master students in criminal law and criminology at the University of Reims in four different sites (four courts’ jurisdictions and four prisons) which was funded by the Mission Droit et Justice.

Our goal was to study the implementation of a then new law (The Taubira Act, August 14, 2014), which, inter alia created a new release procedure called ‘release under constraints’ (libération sous contrainte, LSC) for prisoners sentenced to up to five years (by far the vast majority) reaching a two thirds point in their sentence. This new procedure had the following key features. It was meant to be fast track by saving time on due process (débat contradictoire: DC) which it bypassed, but this ‘devoid of due process’ LSC procedure still ran parallel (and in competition with) to the traditional DC release procedure. In both LSC and DC cases release was decided upon by a French quasi-problem-solving court (juge de l’application des peines : JAP). The difference is that the due process approach is a hearing with an attorney and prosecutor while LSC release decisions were made in the context of a prison administrative commission without any appearance or attorney.

LSC was additionally expected to release prisoners faster than DC because both MoJ and Prison service internal circulars ordered probation officers not to prepare prisoners at all for their resettlement; thereby contrasting with DC where such support is still, if minimally, present. This uncovered the true aim of law reformers, that is to free as much prison space as possible rather to contribute to through the gate prisoners’ resettlement.

The research study

The study contained three main research questions.

1. How was LSC implemented and what were the implementation gaps and their causes?
2. What impact had legitimacy of justice-procedural justice (LJ-PJ) in this context?
3. Did LSC contribute to optimal re-entry, particularly for short sentences?

The methodology comprised, inter alia: a legal analysis of LSC; observation/immersion of all LSC and DC procedures which took place in the four sites from October 2014 to December 2016; attendance at institutional meetings and other informal gatherings; interviews with all eight JAP judges, with other practitioners (probation officers, prosecutors etc.), and with 48 prisoners who had gone through LSC or DC procedures or who had refused to consent to LSC. We also analysed 22 probation reports and a great number of JAPs rulings.

Findings

We found that LSC was only put in motion for those who served short sentences (essentially under one year, and, occasionally, up to two years) as longer sentences provide more time to prepare for release and in such cases both practitioners and inmates preferred to opt for a full DC hearing. This is for three main reasons.

1. DCs provide a due process context which practitioners (because of their judicial culture) and inmates (because it gives them a ‘voice’ in LJ-PJ terms) favour.
2. France has one of the most generous European release systems which in practice means that offenders can ask for early release one third of the way through their sentence, and even sooner (in this case only in the context of DC).
3. Offenders are only supported by the probation services, or have time to involve their families and barristers (who also have a desistance-oriented professional culture) in DC cases.

In line with numerous studies on judicial decision-making we uncovered that less qualitative information on applicants (with LSC virtually none are available) means that JAP are less likely to grant early release, not more likely as reformers had hoped.

This situation is aggravated by the fact that we found that the professional opinions JAP receive from prison and probation practitioners and prosecutors prior to making their decisions are nearly always unfavourable to release. Interestingly, the same groups of professionals tend to express much more favourable assessments in DC procedures.

This situation has resulted in many prisoners refusing to consent to the LSC procedures being used in their case, typically because they objected (and in some cases were rather angry) to not having a voice and not being supported with their resettlement.

Conclusion

To be fair the little literature which is available on the optimal release system in the case of short sentences is not very optimistic. Even in the apparently optimal interagency collaborative Danish context, 70% of inmates are not released early (Storgaard, 2015). There simply is no time both in France and in Denmark, to build a release plan. France is additionally plagued with a lack of programmatic approach – it thinks in terms of legal measures rather than interventions – and a lack of interagency collaboration culture. In practice, therefore, and quite dramatically in the context of LSC, it is essentially charities, local agencies (e.g. the French equivalent of Job Centre Plus), families, and attorneys who do the bulk of the resettlement preparation work.

To make matters worse, most offenders sentenced to short custodial sentences have paradoxically more, not less, criminogenic and other social or psychological needs as French courts typically first try all other non-custodial sentences under the sun before they eventually opt for imprisonment, usually starting with short sentences. In other words they would need more intervention, not less.

Comment

The prison crisis in England and Wales has led many to call for the MoJ to reduce the prison population quickly, possibly by some sort of similar administrative procedure as the French LSC initiative. As Professor Herzog has found, such approaches are not always easy to effect.

Further Reading

Herzog-Evans. French third sector participation in probation and reentry: Complementary or competitive?’ European Journal of Probation, 2014, n° 6(1): 42-56.

Herzog-Evans. Release and supervision: relationships and support from classic and holistic attorneys. International Journal of Therapeutic Jurisprudence, 1(1): 23-58 – summitlawreview.org/TJ_1_1.pdf