France: place for security

Prune Missoffe. Year after year, the budget choices relating to the prisons reflect the same policy guidelines: priority is given to expanding the capacity of the prison system. The budget dedicated to this category is astronomical. For 2022 alone, growing the prison system and partialy financing the construction programmes already underway corresponds to almost a third of the prison administration’s budget, excluding personnel expenses. This budgetary priority limits the funds available, which is particularly detrimental to the maintenance of the current prison system. Contrary to what is said by the members of the Government and Parliament, these amounts do not include renovating substandard buildings or replacing dilapidated prisons.
The second-largest expenditure item is securing custodial settings. It is the most dramatic budget increase for 2022: more than double the previous year.

In addition to the 145 million euros which officially make up the budget category dedicated to security, several tens of millions of euros scattered in other expenditure items with the same objective must still be added.

When we compare these amounts to those allocated to alternative measures to imprisonment (around 40 million euros), reintegration, and repeat-offence prevention missions within the prison (around 90 million euros), this speaks volumes about the Government’s political orientations. They show a worrying contrast with what is said by the Government. While numerous justice reforms come with promises, such as alternative measures, sentence adjustments, and a penal policy for (re-)integration, the reality is quite different. The adopted laws are not binding and the prison administration’s budget prioritises confinement and security. This confirms a repressive policy that successive legislative developments have continued to reinforce. Some of the main factors are punishing more and more behaviours, giving stricter and stricter sentences, increasing the use of the immediate appearance procedure (especially for incarceration) and pre-trial imprisonment.

PM. The Government is rightly concerned about prison overpopulation, which adds to the indignity of the prison conditions. But it looks at the problem in the wrong way by not looking at the causes of prison inflation, but only the consequences: the lack of space. It has been 30 years since the Government built prisons on the pretext of reducing overpopulation. The observation does not change. Expanding the capacity of the prison system only makes us accept the increase in the number of prisoners. The current plan of creating 15,000 new prison places continues to produce the same logic. The prime minister predicts 15,000 additional prisoners by 2027. The budget for 2022 does not present any leads which would respond to the injunction from the European Court of Human Rights to take the necessary structural measures to definitively reduce the overpopulation in prisons. The current situation speaks for itself: as of the 1 September 2021, we’re getting close to reaching 70,000 prisoners with an average occupancy rate of 113%. This level rises to 133% in remand centres, where 1,300 prisoners sleep on mattresses on the ground.

Regarding the material conditions of detention, the budget towards the maintenance of existing prison grounds does not hold out hope for improvement. Only 80 million euros are planned for 2022. An amount that is woefully weak in comparison to that allocated to the construction and the urgency of the work that needs to be done. In 2016, in his reportEnding prison overpopulation, Jean-Jacques Urvoas, the Minister of Justice, spoke about “chronic under-investment in construction” in terms of operational maintenance and renovation. To this date, “half of the custodial settings [were] at a ‘critical’ level of more than 50%”.

To give you an idea of the amount of work needed, in 2018 the Ministry of Justice estimated that the renovation of the Fresnes prison, which has been singled out several times for its unworthy detention conditions, would cost around 270 million euros.

In the context of its injunction to France, the European Court also recommended redesigning the way that the prisons’ operational capacity is calculated. Today, this calculation is essentially based on the number of square metres available per person. Following the advice from the Council of Europe, the Court noted that the calculation of prison capacity must take into account factors other than the space available to the prisoner. For example, the time spent in the cell, and, more generally, the adequacy of prison conditions with the objective of (re-)integration. Criteria such as the capacity of communal spaces, the provision of training, work and activities, the provision of care and the capacity of the rehabilitation and probation service to monitor prisoners should therefore be taken into account. However, the budget for (re-)integration in detention remains far too low. While the time spent in prison will remain empty of substance and meaning, the conditions of detention cannot be made dignified, nor can prisoners be given back their dignity.

PM. We must change the paradigm, attack the causes of overpopulation and give prison the place it is supposed to have in our legal framework: a sentence of last resort. In 2017, the Prime Minister stated that “the use of confinement must not reflect a laziness of mind that would prevent us from reflecting on the meaning of the sentence, the need to prevent repeat offence and the obligation to prepare for reintegration.” In 2018, the president of the republic spoke about the need for a “renewed reflection on the meaning of the prison sentence” and said that “simply continuing expanding the prison system capacity […] turns a political, social and moral issue into an issue of space, which is always convenient but does not resolve it.”* These statements must be translated into budgetary terms and criminal policy guidelines must be radically changed.

The government must adopt a policy of penal reductionism to stop the overpopulation of prisons for good, as the Council of Europe has been calling for for years.

Other European countries have done it and have observed significant changes. Some prisons have even closed. On the other hand, in France, far from the popularity-seeking laxity relayed in the media and political discourse, the number of people kept in prison or monitored by an electronic bracelet has doubled in the last 40 years, and this is not due to an increase in delinquency. The decrease in the prison population in spring 2020 did not lead to more insecurity as some people would have us believe. With a national occupancy rate of at least 100%, this unprecedented situation confirmed that less imprisonment was possible. It was neither unreasonable or dangerous, but on the contrary unanimously welcomed. However, the government did not seize this opportunity, and the budget for 2022 is proof of this.

The reform initiatives are not sufficient enough to modify the judges’ practises. The first step would be to adopt an enforcement system for prison regulation. However, such a system can only find its meaning if it is part of an in-depth overhaul of penal policies:

• decriminalising some types of crime
• limiting the possibilities of relying on pre-trial detention from the initial placement and reducing its duration
• strictly limiting the scope for quicker judgement procedures
• reducing the actual length of prison terms
• reviewing the scale of sentences which combines a reduction of long sentences and the replacement of short prison sentences with non-custodial measures, particularly with open probation measures.

These measures require a new penal culture that thinks of punishment in a way that is disconnected from the prison and a reorientation in the allocation of resources: to the court to make it possible to individualise punishment and choose procedures based on their relevance and not their expeditiousness, to non-custodial sentences to make them credible alternatives to prison, and to the (re-) integration of prisoners.