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 2002-2012 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):
- 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.
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.
THANK YOU!
 http://www.univ-reims.fr/
 http://herzog-evans.com
 martineevans@ymail.com