Martine Herzog-Evans University of Rheims

1. Can a 60 Old French Re-Entry Court Remain Therapeutic in an Era of Managerialism and Prison Overcrowding? Martine Herzog-Evans University of Rheims

2. Preliminary: Who works? • In France, a Judge (the juge de l’application des peines: J.A.P.) is responsible for: • - releasing inmates (also furlough and remission); • - transforming custody sentences of up to 2 years into various community sentences or measures; • - dealing with or sanctioning breach; • - modifying (adapting) offenders’ in the community obligations; • And also may: • - notify obligations; • - keep an eye on the supervision (duty of PO to report to him).

3. The research • In a context where (in particular in the 2002-2012decade) • - sentences’ implementation has become a communication device for politicians; • - has become more punitive. • In 2010, a research was launched by MHE and a team of students primarily to assess what was JA.P.’s professional culture (in particular re desistance. • The research also examined several other questions, including procedural issues: was it still possible to abide by due process rules in the above mentioned context?

4. The research • Methodology (covering all French regions, including overseas): 3 parts • -What JAP SAY : 75 J.A.P. interviewed (more than 20% of all J.A.P.); • -WHAT JAP DO: • Attending all sorts of hearing dealing with a total of 530 offenders; • - Analysing their written rulings : N1300 • WHAT THEIR PARTNERS SAY ABOUT THEM: • - interviewing other practitioners: • 38 PO; • 5 trainee PO; • 16 chiefs PO (8 middle managers and 8 chiefs of service); • 5 prison chiefs; • 13prosecutors; • 32 attorneys. • 6 paralegals.

5. J.A.P. are good judges • 1) They want to become J.A.P. (open question): • - 55.3% ‘for the close relationship we have with justiciables’ ; • - 48% ‘the need to do something useful, help people resocialise’; • - 24.3%: working in partnership; • - 21.3%: ‘sentences’ implementation law is fascinating’ and complex; • - 17.3%: want to know what happens after the sentence is passed. • 9,33% of judges and 69,8% of all their rulings refer to ‘the meaning of’ the measure or its lack thereof.

6. J.A.P. are good judges • With variations of course: • e.g. former prosecutors or former prison governors or investigation judges : a little more punitive// former educators, probation officers, family judges, youth judges: less punitive • A lot had been or wanted to be: family judge, juged’instanceor youth judge, positions that equally allow for constant interaction with ‘justiciables’ (judges have to change job on a regular basis) • I devoted a lot of energy to finding /interviewing ‘bad J.A.P.’: only found 2… • Only 2/75 wanted to quit

7. J.A.P. are transformed by their position • There is a rookie section to the research. I interviewed 9 rookie JAP (only several months as J.A.P.). It is clear that there is a J.A.P. bug or zombie effect: they are partly infected with the J.A.P. (human, turned towards the future and reinsertion, hands on….) bug, but usually not fully yet. Fascinating: the ENM (school for judge) is praised by the judges trained in the last 4 years since it radically changed its training methods and is now teaching both ‘savoir faire’ and ‘savoir être’ (knowing how do to and knowing how to be) Anti-terrorism J.A.P.: totally acculturated after several years of practice

8. But… a managerial and punitive context • General penal system - punitive context: dealing with all offences and harsher sentences = too many cases and overcrowding • Managerial pressure from tribunal hierarchy: J.A.P. must process a maximum of cases • Bifurcation (Pratt, 2002): • - serious offences/offenders: harsher treatment (laws make it more difficult to release them) (JAP deemed too lenient) • - less serious/not serious offenders: community sentences or released in a standardised non judicial manner (JAP deemed not fast enough to process these offenders)

9. Procedure I: holding hearings • Tyler (2012:21): four components to procedural justice in courts: • 1) ‘people want to have a forum in which they can tell their story’. In legal terms (also HER law) = access to a judge/court • 2) ‘people react to evidence that the authorities with whom they are dealing are neutral’. In legal terms = principles of impartiality and independence (includes appearance of…). • 3) ‘people are sensitive to whether they are treated with dignity and politeness, and to whether their rights as citizens are respected. In Legal terms= fair trial. Also relates to judges’ attitude. • 4) ‘people focus on cues that communicate information about the intentions and character of the legal authority with whom they are dealing’: is the court benevolent and caring, sincerely trying to do what is best, and so on (redundant with 3)= savoir être…

10. Procedure I: holding hearings • J.A.P. do tick the abovementioned 4 boxes • However: • - the law sometimes forbids them to hold hearings • (furlough, remission); • - they can avoid holding hearings if the prosecutor agrees and the decision is favourable to the offender (eg release) = in big jurisdictions (Paris, Lyon, Marseille) 80 to 90% of cases processed without a hearing (but interesting exceptions by saving time on other tasks)

11. Procedure II: rulings’ ‘motivation’ • ‘motivation’ = writing down in the ruling why the decision was made. Essential in a democracy/fundamental legal principle. • In practice no time = choice between: - seeing all offenders but not having time to write rulings properly; - or writing badly motivated ultra-short and standardised rulings but seeing (nearly) all offenders.

12. Procedure II: rulings’ ‘motivation’ • For the most part: good rulings (compared with other types of judges/courts) • They often write in a ‘therapeutic jurisprudence key’ tone • J.A.P; say they first and foremost write for the offenders, secondly for the community/society; most often for both. • Clear dichotomy between: - long sentences/serious offenders: detailed motivation, cautious, precise; - and short sentences/community sentences: much more standardised

13. They are under attack • Prison overcrowding + super powerful prison services = tension against JAP who do not release enough &/or fastenough. • Strong forces trying to get rid of JAP b y clipping his/her wings • And creating tensions with probation services • = the idea is to get rid of JAP

14. References • Pratt J. (2002), Punishment and Civilisation,. Penal tolerance and intolerance, London, Sage • Tyler T. (2012), ‘The virtues of self-regulation’, in A. Crawford and A. Hucklesby (eds.), Legitimacy and compliance in criminal justice, Routledge: 8-28

15. A bit of publicity • To learn more about thisresearch and French JAP: • M. Herzog-Evans, French reentry courts and rehabilitation: Mister Jourdain of desistance, Paris, l’Harmattan, forthcoming (one ed. in French, the otherin English) • = I’mbusytranslatingit…. Give me a little time  • M. Herzog-Evans (ed.), Offender release and supervision: the role of courts and the use of discretion, Nijmegen, Wolf LegalPublishers, forthcoming.

16. THANK YOU! • http://www.univ-reims.fr/ • http://herzog-evans.com • martineevans@ymail.com