1. Prof. Martine. H-Evans, Phd Rheims University The added bonus of judicial intervention

2. Introduction History: volunteers mandated by courts Current trends: - privatisation (UK & USA) & the return of the Third sector (France) - ‘polibation’ (Nash, 1999) – UK - ‘prisonbation’ (H-Evans, 2015a) - France - citizens’ participation (e.g. COSA) – Canada, Europe… - problem-solving courts and interagency work (worldwide) – France: since 1945…

3. Focus on judicial participation in supervision Context: - French 70 year old judicial participation in probation and release: juge de l’application des peines (J.A.P.) 7 years research into ‘who works in supervision’ (probation officers/JAP/third sector/guards…. attorneys) – to be continued (clerks’ office, prosecutors…) Question: why associate judges to supervision? Is there any added bonus? I shan’t mention therapeutic jurisprudence as this has been presented by David Wexler.

4. Judicial participation: why? : Theoretical analysis 1) legitimacy of justice literature, following TYLER (2012) - ‘People want to have a forum in which they can tell their story - VOICE -‘people react to evidence that the authorities with whom they are dealing are neutral’ - NEUTRALITY ‘people are ‘sensitive to whether they are treated with dignity and politeness and to whether their rights as citizens are respected’ - RESPECT ‘people focus on cues that communicate information about the intentions and character of the legal authority with whom they are dealing’ – CARE And DE MESMEACKER (2013) FACT-FINDING => Lots of empirical evidence that people comply much better if procedural justice/legitimacy of justice (PJ or LJ) are present…

5. Judicial participation: why? : Theoretical analysis Practical and legal translation (link partly made by therapeutic jurisprudence theory) VOICE – right to appear in court/right to counsel/right to defence/right to dispute the evidence/consent in supervision? NEUTRALITY – impartiality (apparent and objective)/no discrimination (voluntary or not… checklists?) FACT-FINDING – proof (burden of proof (rigorous)/presumption of innocence?/rigorous prep and study of the evidence/in dubio pro reo RESPECT – behavioural+ decorum+ enough time CARE – behavioural (attention for/care for…) = issue of Good Courts or good wine in our bottles… (Wexler, 2014) => Due Process (fair trial) – but also good judges = a powerful criminological tool.

6. Judicial participation: why? : Theoretical analysis 2) Compliance literature Bottoms (2001) includes legitimacy (thereby bridging with Tyler et alii theory) in his model of instrumental/normative/constraint based compliance and link legitimacy to normative compliance Robinson & McNeill (2008, 2010, 2013) simplify the model : formal and short term compliance/substantive and longer term compliance (French: soumission versus adhésion).  Essentially sociological-criminology. But a small scale empirical test in Raynor (2013): compliance interviews in Jersey (French ‘recadrages’) And a bigger confirmation in Digard (2015): offenders recalled by a probation officer rather than by a Judge tend to resist … (see infra the principle of congruent forms) 3) Self-determination theory Deci & Ryan (1972, 2002) large scale multi-replicated mpirical studies: controlled v. intrinsic motivation => not long term compliance (note the term: compliance) => Does imply that PJ/LJ count in terms of substantive/longer term compliance

7. Judicial participation: why? : Theoretical analysis 2) Rituals literature Maruna (2011), Tait (2011) and French authors Garapon (2001) and Desprez (2009) Have all showed how important judicial rituals are. There is evidence that rituals such as wearing a robe, ruling in a court room, having a minimum of culturally embedded decorum, is perceived as being a sign of RESPECT Maruna goes further. He shows that people need desistance rituals (provided by PSC…) in order to convince other people and convince themselves that they have indeed changed. Very similar to the legal theory of… marriage and the registration of births, deaths and divorces. In Legal theory one needs a ritual for persons’ status transformations (théorie de l’état des personnes) => Judicial rituals with each hearing… but we also need graduation ceremony equivalent…

8. Desistance, CCP literatures 3) Desistance literature + 4) Core Correctional Practices (CCP)+ psychology literatures All converge to insist on the utmost important of a ‘working alliance or a ‘therapeutic alliance’ Ex. Bourgon & Guitterez (2013), Martin & al (2000) Recent research (Skeem, et al., 2007; Kennealy et al., 2012) = a relationship that incorporates a therapeutic alliance with PJ + firm, FAIR, and CARING => less reoffending and non- compliance among parolees => Difficult to maintain a therapeutic alliance with probation and treatment staff when they can recall, revoke, or sanction… and if procedures are not fair

9. Judicial Praise and Sanctions 5) Operant Conditioning and Social Learning Theories Bandura (1977); Akers (1973) – with alcohol (Hunt & Nathan, 1973) People learn (good and and things) from attachment figures (Bowlby, 1971)/models… notably figures of authority (typically parents, teachers) via sanctions and rewards. Not talking about beating up and giving goodies… Smiles, Praise, encouragement… disappointed face and tone… when deserved are often enough. But works if: - Directly linked to the behaviour - Immediate Attention: Self-Determination Theory (Deci et al., 1999 – meta-analysis) has found that: there is a significant reduction in intrinsic motivation and long term achievements if tangible rewards (gifts, vouchers, prizes…) are given = > one should only give emotional rewards (praise, encourgement) NOT tangible rewards. =>When they come from authorities (such as a judge) who displays CARE and RESPECT, the impact is very likely greater, particularly in a ritualised context. ‘He praised me’ (Lorraine, Glasgow Drug Court, Nov. 2015)

10. Legal Theory 6) Legal and Human right Theory & Doctrine Human Rights (procedural) Right to council, to an adversarial hearing (French principe contradictoire), independence, impartiality, right to an appeal = RESPECT, FAIRNESS, HUMAN RIGHTS Indeed: European human rights court: article 5 does not apply Van Zyl Smit & Spencer, 2010 … but article 6 does re some sanctions: EHRCt, 28 juin 1984, Campbell & Fell v. UK, n°. 7819/77 and 7878/77 EHRCt, 15 juill. 2001, Ezeh & Connors v. UK,, n os 39665 et 40086/98. But EHR law not static… could thus improve… and follow the French lead ? French traditional model pretty good… (H-Evans, 2016) => the offender as an actor (application) of his case; not someone to whom something is done, but someone with whom something is done

11. Legal Theory 6) Legal theory (again!) - FAIR TRIAL (VOICE) & judicial decision-making are essential as: 1) parole boards and prison governors are not independent (NEUTRALITY) from the executive; 2) Early release part of the sentence= should be dealt with by a court of law (Principle of parallelism of competence (or of congruent forms) no an executive body 3) appeal essential (2 nd chance+ control discretionary power + uniformity of application of the law + more legitimate + rulings must explain why the decision was made ; 4) breach raises proof/presumption of innocence issues. 5) Consent in legal quasi-contractual theory (contractualisation de la peine…) is gaining momentum (see special ed. European Journal of Probation, Dec. 2014 + H-Evans, 2015b)

12. Empirical evidence for the added bonus of Judicial Supervision 7) PSC and Drug Courts outcome literature Research Eval Systematically shows that judicial participation is an essential success component. For a specific study: Rossman et al., 2011) Evidence via a counter example : in England and Wales, Drug Courts did not work so well because they were not judicially led (Bowen & Fox, 2015) 8) Judicial Supervision + RNR Marlowe et alii (2007): adding Judicial Intervention to RNR (notably by adapting the number of judges’ supervision hearings to the level of risk) : very good results

13. Illustration 1 : French reentry courts (JAP)  FAIR TRIAL AND VOICE (except with speedy release and No Hearing Procedures – procédures hors débat)  RESPECT: both behavioural (most of the time: H-Evans, 2014) and procedural  CARE: most of the time: but for speedy release and No Hearing Procedures…  NEUTRALITY (most of the time) but for speedy release and No Hearing Procedures)  FACT FINDING: weak link…. McJustice, overloaded courts + dramatic financial and material state+ weak presumption of innocence Also note that French reentry judges no longer contribute to daily offender supervision

14. Illustration 2: Drug Courts  FAIR TRIAL AND VOICE Most cases (but the hearing must be long enough and attorneys do a better job…)  RESPECT: Yes  CARE: most of the time (but some US courts may be too harsh : Miller, 2009)  NEUTRALITY : most of the time  FACT FINDING: even though not McJustice: not enough adversarial dispute of non-compliance situations (see attorneys’ role)

15. Other Important Judicial Actors Attorneys: - defend their clients in breach cases; - present application for early release or sentences transformation. H-Evans (forthcoming): Range from holistic to classic. Most attempt to be holistic at least at times. Holistic stances = contribution to the release plan/Reinforce Justice System’s NEUTRALITY, RESPECT and dignity (: ‘even a terrible attorney is useful’)/often interact and know families and the offender… add essential holistic and more human data… can embrace a more adversarial role when needed.

16. Other Important Judicial Actors Prosecutors? In France, as in Belgium, prosecutors are important and active actors in PSC or PSC like (JAP) courts. For instance, in French JAP court hearing they present their requisitions and also interact directly with the defendant/probationer/prisoner. I have done numerous qualitative studies over the years and clearly one would need to focus on the role of prosecutors in judicial supervision. What they say, how they say it, particularly when they praise, or show genuine concern for the offender’s problem (level of addiction…) is probably very strong in a context where they are the ‘nasty party’. Offender religiously and intently listen to what they say.

17. References Akers, R.L. (1973). Deviant Behavior: A Social Learning Approach. Belmont, CA: Wadsworth. Bandura, A. (1977). Social learning theory. Englewood Cliffs, NJ: Prentice Hall. Bourgon G & Guitterez L., (2013) ‘The importance of building good relationships in community corrections : Evidence, theory and practice of the therapeutic alliance’, in P. Ugwudike and P. Raynor (eds.), What Works in Offender Compliance. International Perspectives and Evidence-Based Practice, Palgrave Macmillan,: 256-275. Bottoms A. (2001), ‘Compliance and community penalties’, in Bottoms A., Gelsthorpe L., Rex S. (eds.), Community Penalties. Change and Challenges, Cullompton, Willan Publishing: 87-116 Bowen P. & Fox A. (2015), ‘The limits of legal transplants. Is there a problem with English and Welsh problem-solving courts?’, in M. H-Evans (ed.), Offender Release and Supervision: the Role of Courts and the Use of Discretion, Nijmegen, Wolf Legal Publishers: : 447-463 Bowlby, J. (1971). Attachment and Loss, Vol. 1: Attachment. Harmondsworth, UK: Penguin Books. Canton R. & Eadie T. (2008), ‘Accountability, legitimacy and discretion: applying criminology in professional practice’, in: Stout, B., Yates, J. and Williams, B. (eds.) Applied Criminology, London: Sage: 86- 102 Connolly M. & Ward T. (2008), Morals, Rights and Practice in the Human Services, JKP Crawford A. & Hucklesby A. (eds.) (2012), Legitimacy and compliance in criminal justice, Routledge Deci, E.L., Koestner, R. & Ryan, R.M. (1999). A meta-analytic review of experiments examining the effects of intrinsic rewards on intrinsic motivation. Psychology Bulletin. 125(6):627-668 Decin E.L. & Ryan R.M. (2002). Handbook of Self-determination research. Rochester, NY, University of Rochester Digard L. (2015), ‘Compliance and desistance. Contemporary Approaches to Increasing Parole Compliance: The Role o Structure and Relationships’, in M. H-Evans (ed.), Offender Release and Supervision: the Role of Courts and the Use of Discretion, Nijmegen, Wolf Legal Publishers: 281-307 Garapon A. (2001), Bien juger. Essai sur le rituel judiciaire, Paris, Odile Jacob Desprez F. (2009), Rituel judiciaire et procès pénal, Paris, LGDJ Herzog-Evans M. (2002, 2005, 2007, 2013, 2016), Droit de l’exécution des peines, Paris, Dalloz. Herzog-Evans M. (2014), French reentry courts and rehabilitation: Monsieur Jourdain of desistance, Paris, l’Harmattan H-Evans (forthcoming), ‘Release and supervision: relationships and support from classic and holistic attorneys’, International Journal of Therapeutic Jurisprudence H-Evans (2015)a, ‘France: Legal architecture, political posturing, ‘prisonbation’ and adieu social work’, in G. Robinson & F. McNeill, (eds.), Community Punishment. European Perspectives, Routledge & COST UE: 51-71 H-Evans (2015b); ‘Consent and probation: An analogy with contracts”, EJP, n° 7(2): 143-164. Martin D. J., Garkse J. P., Davis K. M. (2000), « Relation of the therapeutic alliance with outcome and other variables: A meta-analytic review », Journal of Consulting and Clinical Psychology, n° 68(3): 438-450. Kennealy, P.J., Skeem, J.L., Manchak, S.M., and Louden, J.E. (2012). ‘Firm, fair, and caring officer-offender relationships protect against supervision failure.’ Law and Human Behavior, 36, 6, 496-505 Douglas B. Marlowe, David S. Festinger, Karen L. Dugosh,Patricia A. Lee, Kathleen M. Benasutti (2007), ‘Adapting judicial supervision to the risk level of drug offenders: Discharge and 6 month outcomes from a prospective matching study’, Drug and Alcohol Dependence 88S (2007) S4–S13 Maruna S. (2011 ), ‘Reentry as a rite of passage’, Punishment and Society, n° 13(1): 1-27 McNeill F. and Robinson G. (2013), ‘Liquid Legitimacy and community sanctions’, in Crawford, A. and Hucklesby A. (eds.), Legitimacy and compliance in criminal justice, Routledge: 116-137. Miller E.J. (2009), ‘Drugs, Courts, and the New Penology’, Stanford Law & Policy Review, n° 20(2): 417-462 Nellis M. & Gelsthorpe, L. (2003), « Human rights and the probation value debate », in WH Chui & M Nellis (eds), Moving probation forward: evidence, arguments and practic:.227-241. Padfield N., Morgan R. & Maguire M. (2012) Out of court, out of sight? Criminal sanctions and non-judicial decision-making”, in M. Maguire, R. Morgan et R. Reiner (dir.), The Oxford Handbook of Criminology, Oxford Univ. Press, 5 th edition, p. 955-985 Raynor P. (2013), ‘Compliance through Discussion: The Jersey Experience’, in P. Ugwudike and P. Raynor (eds), What works in offender compliance. International perspective and evidence-based practice, Palgrave MacMillan: 107-118 Robinson G. and McNeill F. (2008), ‘Exploring the Dynamics of Compliance with Community Penalties’, Theoretical Criminology, vol. 12: 431-449. Robinson G. and McNeill F. (2010), ‘The dynamics of compliance with offender supervision’, in F. McNeill, P. Raynor and C. Trotter, Offender Supervision. New Directions in theory, research and practice, Cullompton, Willan Publishing: 367-383. Rossman, S. B., Roman, J. K., Zweig, J. M, Rempel, M., and Lindquist, C. H., eds. (2011). The Multi-Site Adult Drug Court Evaluation. Washington, D.C.: The Urban Institute Skeem, J.L., Louden, J.E., Polaschek, D., Camp, J. (2007). ‘Assessing relationship quality in mandated community treatment: Blending care with control.’ Psychological Assessment, 19, 4, 397-410 Tait D. (2002), ‘Sentencing as Performance: Restoring Drama to the Courtroom’, in Tata C. and Hutton N. (eds.), Sentencing and Society, Aldershot, Ashgate, 469-480 Tyler T. R. (2006), Why People Obey the Law, New Haven, CT, Yale University Press, 2 nd ed. Tyler T.R. (ed.) (2007), Legitimacy and Criminal Justice. International Perspectives, Russel, Sage Foundation, New York van Zyl Smit D. &. Spencer J. R (2010), ‘The European dimension to the release of sentenced prisoners’, in N. Padfield, D. van Zyl Smit and F. Dünkel, Release from Prison. European policy and practice, Willan Publishing, 2010: 9-46 Wexler D. (2014), ‘New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence 'Code' of Proposed Criminal Processes and Practices’, 7 Arizona Summit Law Review 463

18. Thank you! http://herzog-evans.com http://herzog-evans.com martineevans@ymail.com martineeevans@gmail.com @ProfMEvans