Martine Herzog-Evans University of Rheims

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).

The research In a context where (in particular in the decade) - 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?

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.

J.A.P. are good judges 1) They want to become J.A.P. (open question): % ‘for the close relationship we have with justiciables’ ; - 48% ‘the need to do something useful, help people resocialise’; %: working in partnership; %: ‘sentences’ implementation law is fascinating’ and complex; %: 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.

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, juge d’instance or 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

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

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)

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…

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)

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.

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

They are under attack Prison overcrowding + super powerful prison services = tension against JAP who do not release enough &/or fast enough. 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

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

A bit of publicity To learn more about this research and French JAP: M. Herzog-Evans, French reentry courts and rehabilitation: Mister Jourdain of desistance, Paris, l’Harmattan, forthcoming (one ed. in French, the other in English) = I’m busy translating it…. Give me a little time M. Herzog-Evans (ed.), Offender release and supervision: the role of courts and the use of discretion, Nijmegen, Wolf Legal Publishers, forthcoming.

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