France: "a change of tactics"

Arnaud Gaillard. There has definitely been progress in terms of prisoners’ rights, for example, recent improvements have enabled incarcerated individuals to exercise their right to vote more easily. However, no such improvement has been made to the demeaning detention conditions in French prisons. In particular, overcrowding remains an issue, one which is endemic to detention facilities housing those serving short sentences or awaiting sentencing. Overcrowding affects all aspects of life in detention: social, medical and professional. As such, the aim of prison, to protect society and to prevent individuals from reoffending, is greatly impacted by this problem. This fault in the prison system benefits no one and the rights of those in detention are routinely infringed upon.

In January 2020, a landmark ruling was given in the case of J.M.B. and Others v. France. The Court deemed the inhumane and degrading treatment suffered in French prisons to be in violation of the European Convention on Human Rights. The CNCDH’s opinion on the effectiveness of fundamental rights in prison was adopted in March 2022 and follows in the footsteps of the 2020 ruling. The opinion was guided by the rationale given by the judges in their verdict.

In reality, it was the panic caused by the start of the COVID-19 pandemic that prompted the French government to relieve overcrowding in prisons on health grounds. But these exceptional circumstances would not last. By 1st March 2022, the prison population had soared once again with short-term detention facilities reaching 137.7% capacity. This return to pre-pandemic conditions is a backwards step, with 1,665 mattresses on the floors of cells that are already overcrowded. A member of the Senate recently visited Perpignan prison; this visit revealed 311 individuals for every 105 spaces, which equates to a 296% occupancy rate.

Thus, the application of the J.M.B ruling is inconsistent, in practice. In follow-up decisions from a meeting in September 2021, deputies from the Committee of Ministers of the Council of Europe “expressed […] their concern at the latest figures [on prison overpopulation] which show that it is again increasing rapidly and significantly”. They “therefore, invited the authorities […] to rapidly adopt […] a coherent long-term strategy to reduce the prison occupancy rate”, “more specifically, [they] invited the authorities to privilege and strengthen the means needed to develop non-custodial measures […], while rapidly considering new legislative measures that would regulate the prison population in a more binding manner.” Ultimately, the CNCDH, agrees with this stance in its opinion and sets out a guide for guaranteeing fundamental rights in prisons.

AG. The reasoning behind this recommendation is that the implementation of a legally binding measure would, at long last, enliven France’s apathetic attitude to dealing with the situation in prisons. The question is: how do we simplify prison management and return to the basic maths of 100 spaces equals 100 prisoners? Politicians routinely claim the solution is to increase the number of spaces available by building new prisons. Yet, no government policy has ever managed to rectify the issue of overcrowding, regardless of the capacity of France’s penitentiary establishments.

In France, the default logic is to fill detention facilities to the brim, incarcerating 300 individuals in a prison which only houses 200. As such, increasing the number of spaces in prisons will only serve to increase the maximum capacity of these facilities, which will ultimately be surpassed once more.

With this in mind, the Commission recommends that the State adopt a mechanism for regulating detention facilities. The mechanism should be legally binding but rely on a very simple principle: prisons should not be filled beyond their capacity. Implementing such a mechanism would prove vital to stemming and preventing overcrowding.

In its opinion, the Commission differentiates between mechanisms that will have an immediate impact and long-term measures. The former are intended to immediately reduce the pressure on prisons and include early release measures, like those used during the Covid-19 pandemic, in 2020. The latter aim to prohibit all penitentiary establishments from exceeding a 100% occupancy rate. These recommendations are ratified by the Controller-General for Places of Deprivation of Liberty (Contrôleur general des lieux de privation de liberté, CGLPL). The aforementioned measures must be inscribed in law to be legally binding, thus holding the penitentiary administration and the courts accountable. More specifically, the CNCDH’s opinion aims to limit admissions into prison and prioritise releases with the help of an alert threshold. This would allow the administration to predict when 100% occupancy will be reached and to avoid exceeding this limit. When a prison reaches the alert threshold, prisoners nearing the end of their sentence must be released early or their sentence commuted.

This approach requires the Ministry of Justice to reallocate their resources. Rather than increasing the number of prison spaces by building new facilities, which would inevitably lead to a rise in the number of incarcerated individuals, the CNCDH suggests diverting the budget towards renovating dilapidated establishments and investing in viable monitoring systems, which would allow sentences to be served outside of prison. Thus, the CNCDH is calling for a shift in the approach to prison overcrowding, which would make way for a policy to reduce the prison population.

AG. The good news is that the changes set out in the CNCDH’s opinion rely largely on political determination and courage; lawmakers don’t need to reinvent the wheel. Elsewhere in Europe, governments are already moving towards prison deflation. France may be lagging behind when it comes to prison overcrowding, but that does not have to be the case. Neighbouring countries, as well as those in a similar position to France, have succeeded in reshaping their penal mechanisms. For example, the Netherlands has managed to empty its prisons and has even used the vacant spaces to accommodate prisoners from neighbouring Belgium.

This goal of prison deflation should equally be viewed as a by-product of the penal process, as it is through effectively preventing crime and combatting reoffending that prison deflation will be achieved.

It is also important to note the high percentage of people waiting to be sentenced, which exacerbates the overcrowding problem in short-stay detention facilities. As such, legislators must limit the use of pre-trial detention and reduce the amount of time individuals are remanded in custody.

Lawmakers must also to reduce the number of offences punishable by a period of incarceration and develop alternatives to detention. They should be mindful that these changes do not result in an increased number of individuals in the justice system, particularly those who are socially, culturally, or economically disadvantaged.

Finally, the CNCDH’s opinion highlights the importance of effectively implementing Article 132-19 Indent 2 of the French Penal Code ¹, which stipulates that imprisonment should only be used as a last resort. Hitherto, attempts to reform the prison system have not yielded sufficient benefits and, in some instances, have even been counterproductive. The Commission proposes a change of tactics to resolve the issues within French prisons. This time, all players in the prison sphere must be united in this change. Judges, lawyers, prison guards, social workers, medical staff, human rights advocates, prisoners and their families, all united by a common goal: developing a new penal and penitentiary project in France.