1That punishment be derived only from a legal framework is one of the distinctive traits of modernity, declare Guy Casadamont and Pierrette Poncela (Casadamont, Poncela, 2004, 14). But if the legal basis of punishment has been a principle affirmed since the Declaration of the Rights of Man and the Citizen of 1789 (Section 8), nevertheless, the actual practice of punishment in France has remained flawed. Hence the recurring demands – simultaneously from interested associations, legal thinkers (Froment, 1997; Poncela, 1998; Péchillon, 2000), national (Canivet, 2000; Assemblée nationale, 2000; Sénat, 2000) and European authorities1: for the adoption of a law that might protect the rights of prisoners. The demand was such that the political authorities had seemed persuaded. At the inauguration of the National School of Penal Administration in Agen, on November 8, 2000, the then prime minister, Lionel Jospin, announced a “profound reform of the penal public service” in the form of a law defining the purposes of punishment; the missions of the penal public service; the missions of penitentiary staff; the organization of the penitentiaries administration; the rights and duties of the prisoners; and the external oversight of the penitentiaries. After many intervening events, including a draft bill made public on July 18, 2001, the reform project, caught up in the imperatives of the election campaign and its focus on security issues, was put on a back burner.
2More than three years later, not seeing anything happening, the Commission nationale consultative des droits de l’homme (CNCDH) (National Consultative Commission on Human Rights) reiterated that according to the constitution: “only the law can determine the legal framework that organizes the exercise of freedoms” and that “too many decisions affecting the fundamental rights of prisoners are regulated by subordinate standards (decrees, circulars, service notes, internal institutional regulations)” (CNCDH, 2004).
3The movement promoting legislative protections for prisoners has not weakened, indeed a certain renewal has been evident. The diversity of participants in this movement may even suggest a positive outcome2. Nevertheless, one question seems to be absent from the current attempts to create a law governing the penitentiary. For all these activist associations, academics, judges and politicians, the law would, in effect, be the guarantor of respect for rights in prison – the sine qua non of a prison that is respectful of human dignity, of a prison based on laws (Froment, 1997). But none among them doubts the effectiveness of this same law in prison.
4The German example, however, demonstrates the limits of the law even when scrupulously applied in a state where the importance of the rule of law has been so powerfully highlighted by its recent history. This raises questions about the place of norms in the context of total institutions (Goffman, 1968). The March 16, 1976 adoption by the German parliament of a law respecting the execution of sentences has, in effect, settled the question of formal legality. But not the question concerning the respect for rights in prison. Similarly, the recent evolution of the carceral institution in France, particularly under the influences of the Court of Strasbourg, the development of national jurisprudence and the extension of its control to measures that were, until now, subject to the discretionary power of the authorities3, cannot hide the limitations of norms behind bars, nor the gap between words and deeds (Céré, Péchillon, 2003).
5The theory of a law that is powerless to impose its will upon a penitentiary system governed by its own imperatives resulted from the confrontation between a doctoral research on the protection of prisoners’ rights in France and Germany (Mansuy, 2003) and actual field work with activist associations. However, this work remains a legal research, and as such is based on the study of texts and their application by the jurisprudence of the two states concerned, in order to analyse the limitations of formal legality in an institution that creates its own rules.
6The Fundamental Law of Germany of 1949 requires that any breach of one of the fundamental rights guaranteed by the text (Sections 1-19) must be one contemplated and overseen by the legislature. Since 1976, this obligation has been respected in prisons by virtue of the law relating to the execution of sentences (Strafvollzugsgesetz). In France, the same principle is affirmed in Section 34 of the Constitution. Nevertheless, the legislature has not deemed it appropriate to legislate concerning the rights of people incarcerated in French prisons.
7The Fundamental Law of 1949 is strongly marked by the rule of law. Two principles flow from this: that of the primacy of law (Vorrang des Gesetzes), by virtue of which “the will of the state as expressed in a legislative form legally prevails over all other manifestations of the will of state institutions”4, and that of the reserve of the law (Gesetzesvorbehalt), which requires the legislature to intervene against anticipated attacks on the fundamental rights of citizens. Following these principles in a decision of the 4th of March 19725, the constitutional court gave formal notice to the legislature to provide Germany with a law related to the execution of punishments. This put an end to a classical theory of administrative law, according to which penal authorities and prisoners were connected by “a particular public authorities relationship”6 that justified breaches of fundamental rights in the absence of a legislative framework.
8On March 16, 1976, the law relating to the execution of sentences (Strafvollzugsgesetz or StVollzG) was enacted and came into force on January 1, 1977. It contains 202 paragraphs – the first of which defines the domain of its application: it regulates the deprivation of freedoms through the use of prison sentences, re-education measures and preventive detention orders7. The subjects of the three paragraphs that follow are: re-socialization and the protection of society through incarcerations8, the alignment of life on the inside with life on the outside (Angleichungsgrundsatz)9, and prisoner participation in rehabilitative activities10. Following that: the planning of the execution of sentence (from the entry to the exit from prison, via the elaboration of a correctional plan, aspects of daily life (food and lodging, visitation, correspondence and temporary leaves, work and training, religious practice, healthcare…), measures relating to security and order, the use of direct force, the disciplinary regime. Lastly, paragraph 196 provides for legal limitations on the exercise of fundamental human rights: specifically, it restricts Section 2, Par. 2, first and second sentences (integrity of the body and personal freedom) and Section 10, Par. 1 (privacy of correspondence) of The Fundamental Law.
9Some concepts, such as treatment (Behandlung) or order and security (Ordnung und Sicherheit), although central to the legislative plan, were deliberately not defined by the legislature. It was hoped, in effect, that the techniques of treatment could adapt to the evolution of knowledge in this domain11 and that the restrictions necessary to rights and freedoms might intervene beyond what the law could foresee12. But this voluntary opening was quickly transformed into a vagueness that often justified “an ex post facto legitimization of existing practice […] and the renewal of dominant administrative rules by other means” (Salle, 2003).
10The uniform administrative regulations at the federal level (Bundeseinheitliche Verwaltungsvorschriften zum Strafvollzugsgesetz) are a good illustration of this renewal of dominant administrative rules by other means. Supposedly meant to interpret the law and ensure its uniform application throughout the territory of the German Republic, these administrative regulations, while acting as the most frequent restraint on laws favourable to the prisoner, have allowed local authorities a great freedom of manoeuvre for the limitation of freedoms in the name of order and security (Neubacher, 2001). This legal grey-area certainly allows for an adaptation of the norms to local situations, but it also creates a form of legal uncertainty, in that the application of law will depend on a relevant authority, its conception of its role, and its own imperatives.
11By virtue of Section 34 of the French Constitution of 1958, the law defines the regulations concerning the civil rights and fundamental guarantees granted to citizens for the exercise of public freedoms. But in the area of prisons, the legislature was content to confer to the regulatory power, using the expedient of Section 728 of The Code of Penal Procedure, the mission of determining the organization and regulation of penal institutions. The essence of the measures managing the life of the prisoners is in fact contained in the regulatory part of The Code of Penal Procedure and the hierarchy of norms is found, by some inversion, in the part relating to the execution of sentences. Because there is no legal rationale justifying such a derogation from constitutional principle, a law would be necessary to consistently limit the exercise of the fundamental rights of the prisoners (Canivet, 2000, 65).
12In the absence of written law, the attacks on the fundamental rights of prisoners are nevertheless contained in the written regulations. In this way, the regulation of searches of prisoners13, the regime regarding communications, written or telephonic14 or the implementation of state constraints15 are all very much part of a domain governed by decree. It is the same for the disciplinary regime, which is entirely regulated by a decree of April 2, 199616, the constitutionality of which is questionable, according to Raymond Gassin (Gassin, 2001). And moreover, the authorities attempt, by way of “regulatory” circulars, “to establish regulations that rely specifically upon the alleged characteristics of the institution” (Péchillon, 2000). Circulars that are supposed to interpret the terms of a law (Koubi, 1996) that does not exist, therefore govern permissions to leave17, body searches18, or use of isolation19, issues that relate to the rights of the person. “Reforming the corpus of circulars respecting prison laws by limiting their interpretive function” (Canivet, 2000, 259) might be one of the ways to guarantee a formal legality for the execution of sentences.
13On the other hand, it is difficult to apply general laws that are also supposed to govern the prison environment. (Assemblée nationale, 2000, 138-139). This is shown by the problems in applying the law n° 2000-321 of the 12th of April, 2000 in respect of the rights of citizens vis a vis the authorities. The prison authorities were not initially concerned about this law, even though the legislature’s preparatory efforts made clear its willingness to see the law applied in prison. After a notice of the Council of State of October 3, 200020 that confirmed the application of this law to prisons, the authorities, by means of a circular, tried to limit its effects, especially the potential for lawyers to appear before the disciplinary commision21. Moreover, the penal administration still does not allow other orders that are unfavourable to prisoners, such as solitary confinement, to be made subject to this law. The Minister of Justice, by way of a draft decree, reviewed with the correctional unions on Sept. 7, 2004, even had to invite the prison wardens to better respect “the legislation in force,” particularly that which allows prisoners to retain counsel at the time of pleadings preliminary to the placement decision.
14The absence of a legal framework for the exercise of administrative power in French prisons and the subjection of prisoners to laws of questionable constitutional validity create a large area for manoeuvre by the authorities and can give the impression that prisons are beyond the law. This impression is re-enforced by the fact that in spite of the development of a national and European jurisprudence that increasingly tends to limit arbitrary administrative decision-making, the exercise of rights in prisons continues to meet resistance from internal institutional rules. Similarly, in spite of nearly 30 years of penitentiary law as well as a rich jurisprudence, prisoner rights in Germany are far from what they should be according to the laws. The question therefore arises whether these surviving prison regulations which interfere with fundamental rights, do so because the law is fundamentally flawed or just ineffective within the prisons. Another issue is whether the existence of laws is synonymous with the respect for rights.
15While the French and German laws affirm the main objective of prison as being the reintegration of the prisoner into society, in reality, the needs of order and security almost always prevail over those of “treatment”. From these two ideas – order and security – the prison administration really creates its own “law” – informal, deriving from local practices and the relationships among the various actors in the prison context. This informal “law” often conflicts with formal codes or, in any case, doesn’t necessarily take them into account.
16On September 22, 1964, Jean Foyer, The Keeper of the Seal, declared that the fundamental mission (of the prison administration) is to guard prisoners confined by judicial decision and he encouraged custodial personnel to “apply the rules, and all the rules, and much more – to apply their intelligence, generosity, and zeal, in the pursuit of security” (Favard, 1997, 18). Forty years later, and in spite of a prisoner escape rate among the lowest in Europe, the fear of escapes and the imperatives of order and security have remained the foundational obsession of the French prison system (Herzog-Evans, 1996). A union representative appearing before the commission of inquiry of the National Assembly in 2000, stated that: “from the point of view of a guard, a suicide or attempted suicide on the part of his prisoner would be preferable to an escape, whatever the respective levels of dangerosity” (Assemblée nationale, 2000, 170).
17According to Section 1 of the law of June 22, 1987, “the prison public service participates in the execution of judgements and in the maintenance of public security. It facilitates the social re-integration of those persons entrusted to it by judicial authority. It is organized in such a way that it can best individualize punishments”22. This is an interesting formulation because it shows that the law itself creates a certain hierarchy between the goals of social reintegration and the maintenance of public security. In effect, if the prison public service “facilitates” reintegration, it “participates” in the maintenance of public security. In the first case, there is only a required conduct, in the second, a required result. To see a required result in relation to re-integration seems unlikely, indeed, undesirable. On the one hand, evaluating a successful re-integration requires a discussion of the criteria used: is it the absence of recidivism? Integration into the work-force? A thriving family life23? On the other hand, to attain the goal of re-integration at any cost might require the use of methods of “re-education” that could make incarceration look comparatively enviable24. However, in France, the question of how to achieve the objective of re-integration is one that continues to be raised (for example, Assemblée nationale, 2000, 179). Even if the lack of resources cannot alone explain all of an institution’s failures25, budgetary choices do also indicate political priorities.
18For its part, the German law respecting the execution of sentences is quite clear regarding the priority it gives to the goal of re-integration. In its second paragraph, it requires that during his or her imprisonment, the prisoner must acquire the capacity to lead a socially responsible life, without criminal behaviour. In the second line, it nevertheless adds that imprisonment is also meant to protect society from other acts of criminality. For the doctrine, re-integration would be the only objective of imprisonment, the protection of society being only the minimum obligation of the prison system (Calliess, Müller-Dietz, 2000, 35). The Federal Constitutional Court, for its part, has deemed that in realizing the main objective of imprisonment, which is re-integration, the protection of society must be given consideration, but never as a goal in itself of imprisonment26. However, Paragraph 4, Sub-paragraph 2 – which some writers considered a vague clause giving rise to legal uncertainty (Kaiser, 1987) – declares that where the law is otherwise silent, prisoners’ rights can only be restricted when justified for the maintenance of security or the prevention of serious threats to order in the prison. The law thus gives the authorities complete power to attack fundamental rights as soon as they might threaten order or security. It also grants the authorities complete power to define “order” and “security”.
19The idea of security “strongly conditions the exercise of rights and liberties inside prisons”, declares Guy Canivet in his report on how to improve external oversight of French prisons (Canivet, 2000, 55). It is in the name of security that the measures of control and constraint are used on prisoners. Cell and body searches are left to the discretion of the warden, who can order them as often as he or she “deems necessary”27. It is the same respecting handcuffs or shackles: although in theory deemed exceptional according to Section 803 of the French Code of Penal Procedure, in reality they are systematically applied (Sénat, 2000, 144), irrespective of the person’s status. The German legislation leads to the same results, since the administrative regulations provide for the use of handcuffs where there is a serious risk of flight or if the prisoner is a danger to himself or to others. Regarding transfers and isolation – measures used in France to control “unmanageable” prisoners (Herzog-Evans, 2001) – in the absence of any control on transfers by a judge, they are most often justified on these same grounds28.
20Lastly, these same grounds of order and security will even justify attacks on the rights of third parties. Thus, Paragraph 25 of the German law regarding execution of punishments anticipates giving the warden the discretion to refuse some visits if order and security might be put at risk. It is the same for written communications29. Order and security also justify surveillance of conversations during visits30. The situation in France is identical, since the warden can prevent written correspondence or a visit, except with family, if it “appears to compromise the security and order of the prison”31.
21According to Erving Goffman, the total institution is organized around a system of rewards and favours, limited and clearly defined, that are awarded to an “inmate” in exchange for his mental and physical submission to staff. On the other hand, punishments are incurred when the rules are violated (Goffman, 1968, 92). Prison is no exception.
22This system of gift and reciprocation, of continuous negotiation between the prisoners and their keepers, is the real normative system in prison, a system which guarantees the daily maintenance of peace in a warlike setting (Chauvenet, 2000). In this way the prison authority can: buy the good behaviour of some unruly prisoners; persuade others to denounce troublemakers; to some extent encourage the existence of a prison mafia in order to limit potentially large rebellions; create a number of specific practices at each prison and pressure each one to adopt the behaviour that it seeks (Céré, 1999, 102; Herzog-Evans, 1998, 291). By accepting, indeed, in making use of such methods, the prison authority departs from the role envisioned for it by the law and creates its own new form of law. However, more than codified laws, it is these practices that prisoners are familiar with. Much easier to understand than legal jargon and the complexities of procedure, these practices are much closer to prisoner culture and information about them is easily spread by word of mouth. Hence the confusion and outrage that propagates in prisons when a new rule disturbs established norms. But their informal nature, vitiating any objective continuity, limits their potential as a prisoner code of litigation. These practices, because of their variability and lack of predictability, create legal uncertainty.
23In prison therefore, (but not only there), it is actual practice that defines norms of behaviour, and not predetermined norms that determine actual practice. This state of affairs is in reality one of the consequences of the “life of the law”. The social space is taking over juridical norms, interpreting and adapting them to its own needs. In order to make the system of rules work, each school, hospital, or postal station, for example, must adapt it to its own environment. The judge, especially one in an administrative law context, must always take that into account when ruling on the validity of an administrative act in relation to a legal decision. Jurisprudence therefore begins to consider the carceral specifics in order to determine whether certain decisions conform to the codified law in force.
24In the Remli decision, for example, the Administrative Court of Appeal of Paris, in examining the true conditions of isolation, has determined that contrary to what the Code of Penal Procedure states, the prisoners put into isolation are not “being subjected to the regular regime of detention”32. The result is a legal recognition that placement into isolation is a decision that can be grieved on the basis of an abuse of power. In a sense, this judge’s analysis may allow for a much closer correspondence of jurisprudential responses to breaches occurring in prisons. Meanwhile, however, accepting that the prison administration does not apply the laws it should, tends to justify decisions made contra legem. Beyond the strictly legal questions relating to their validity, the continuance of these practices is especially damaging in a closed institution where access to the law is complicated by both simple physical constraints (which prevent the retaining of counsel) and the characteristics of the prison population33.
25Contrary to France, where the case law relating to the execution of sentence is still in its infancy, in Germany, for more than 30 years, judges have made their presence felt more heavily. German law has given competence over execution of sentences to a single tribunal (Strafvollstreckungskammer), a special chamber at a higher level (Landgericht), and it presides over all judgements related to prisons. Also, like any other citizen, a prisoner has the right to bring an action before the Federal Constitutional Court34. As a result, since the 1970s, a rich case law has developed that has examined the application of the codified law by the prison authorities.
26However, exercising one’s right of appeal in prison clashes with that same carceral structure: the administration against which the prisoner is grieving is not just the adverse party in the action; it becomes a omnipresent adversary in the sense that it can delay or deny the temporary leaves or can tamper with other privileges of the prisoner’s sentence (Diepenbruck, 1981, 238). Also, the length of the procedures can render illusory the notion of effective recourse. Often, the claimants end up being released before the tribunal has rendered its decision (Lesting, 1993; Plumbohn, 1993).
27Finally, the process in place derogates from the common law (no hearing for the prisoner applicant before the tribunal in charge of execution of sentences, no compulsory enforcement of the latter’s decisions, ...) and might be an obstacle to any genuine jurisdictional control (Calliess, Müller-Dietz, 2000, § 109; Kamann, 1994; Dünkel, 2002). Under these conditions, the impact of the judicial ruling on prison practices, although difficult to estimate, seems limited. Hence, the decision of the Federal Constitutional Court of February 7, 200235 which raises single-cell occupation to the level of a fundamental right, should thus be welcomed in terms of principle and law (Dünkel, Geng, 2003). But how could it be put into practice in light of the current prison overpopulation?
28Prison is a place where all decisions and acts (judicial or otherwise) assume a particular dimension as much by virtue of the regal character of the administration as by the status and personalities of the prisoners, writes Éric Péchillon (Péchillon, Herzog-Evans, 2003, 6). In the absence of a satisfactory legal definition, the concept of security justifies all the locally created rules, whether or not they conform to the law of human rights. The organizational latitude granted to the prison administration ends up as rules designed for local conditions, the balance of power between unions and management, or the categories of prisoners present – rather than rules made according to the general principles of administrative law.
29This conclusion regarding the weak influence that law (and rights) have upon the functioning of prisons leads to an observation (that might seem obvious): the law, as sophisticated as it can be, cannot on its own, guarantee the rule of law in prison (Froment, 1997). In addition, the German example shows (if it is necessary) that prison walls are porous and susceptible to politico-economic changes (Artières, Lascoumes, Salle, 2004). This forces us to reintegrate the debate on prison rights into a more general one about what society expects from punishment. For how could it be imagined that the functioning of a prison might change if the larger penal system that nourishes it remains the same, especially if the institution has to accept all the people sent there, whatever their number (Combessie, 2004, 11) and whatever their profile (penal, social, sanitary,…)?
303. Re-Thinking Punishment
31As asked recently by Raymond Gassin, “Is not imprisonment, by its very nature, incompatible with the ‘law of human rights’?” (Gassin, 2001). In fact, it is the same question that is always asked. As Professor Massimo Pavarini, an Italian expert on prison law, has said: “Promoting rights in prison is an ideal that does not take into account the original nature of prison”. He adds: “It seems more realistic to me to fight for abolition (of this form of punishment), than to pretend to submit it to the rule of law” (Pavarini, 2004). To escape the eternal debate about the necessity for prison reform, a debate that began almost with the creation of prison itself (Foucault, 1975), perhaps it is necessary to take note of the difficulties with respect to rights in the context of prison and draw conclusions in terms of punishment.
32Just as in the 1970s, when psychiatry was forced to open up and treat the majority of its patients outside of institutions (which is not without its problems regarding the treatment of the mentally ill who commit offences or crimes), a change made necessary both by new scientific knowledge and as a response to certain criticisms of its opacity, can we not envision an evolution in penal science that takes into account the fundamental subjugating characteristics of imprisonment? The reduction of imprisonment is not a simple utopia. Prison reduction policies were tried in various countries. Nils Christie has recounted the post-war Finnish experience where a choice was made to significantly reduce the prison population (Christie, 2003). For historical, economic and social reasons, the country wished to be closer to Western Europe than to its Soviet neighbour; a policy of voluntarism was implemented to a point where the Finnish rate of incarceration became among the lowest in Europe36. Germany itself experienced a strong decrease in imprisonment between 1983 and 1991. Here it was more a matter of judges having developed a sensitivity to the realities of prison rather than an actual penal policy (Kuhn, 1996). Similarly, the reduction experienced by France from 1996 to 2001 was essentially caused by a less frequent intake of detainees (caused mainly by less recourse to remands) as well as a slowing of the increase in the length of sentences Tournier, Mary-Portas, 2002), with no legislative modifications of any significance37. However, a looming election campaign with a security focus was enough to increase the prison population by 14% (between September 1, 2001 and September 1, 2002).
33The analysis of policies in the countries that have succeeded in reducing their prison populations shows that a coherent policy is necessary to attain such an objective, a policy that must be “characterized by a generalized scepticism on the part of the actors in the penal justice system in relation to imprisonment, a decrease in the application and duration of prison sentences, an absolute intolerance of overcrowding and a refusal to expand prison capacities” (Snacken, 1999).
34Reducing penalties for certain behaviours; limiting the recourse to pre-trial detention; sensitizing judges and prosecutors about the implications of imprisonment – particularly regarding fundamental rights; limiting the duration of sentences; emphasizing the individualization of punishments (parole and day parole); the introduction of a numerus clausus (prisoners not to exceed available spaces). These measures have been recommended by the Council of Europe for several years38.
35What link exists between the decreasing the number of prisoners and respect for prisoners’ rights? The first, quantitative, and obvious answer, is that the fewer the prisoners, the fewer breaches of prisoners’ rights will occur. Moreover, the reduction in prisoner numbers might mathematically entail a reduction of prison overpopulation, which by itself has currently caused a number of violations of fundamental rights in both France and Germany39.The European Court of Human Rights has recently declared that prison overpopulation can constitute a form of inhuman and degrading treatment40.
36Meanwhile, the improvement of rights in prison will certainly result from the adoption of prison laws that would allow for the clarification of the normative situation both for the prisoners and the custodial staff and provide the legal certainties needed for the rule of law. But above all, going beyond the limits of a formal legality in a world governed by its own imperatives assumes that the “common” law of the public services will apply in prison. This would start with the recognition of the prisoner as having the status of a user of the prison as a public service. This would allow “a claim for the application of general principles before a court” and would oblige “the prison administration to supervise the actions of its staff and to respect the constraints of the hierarchy of norms” (Péchillon, Herzog-Evans, 2003, 53).
37The integration of the prison public service within the purview of the law of April 12, 2000, governing citizens’ rights in relation to the government, moves in this direction. So does the phasing out by administrative judges of labelling the measures taken by prison administrators as internal decisions. This practice had hitherto been limiting legal control over decisions that breached the rights of prisoners41.
38Making the prison into a public service like any other might limit the recourse to internal rules that are contrary to fundamental rights. Finally, establishing an independent control over prisons of the type recommended by, among others, Guy Canivet (Canivet, 2000) would “raise a bit more of the veil that covers the jails of the republic”.
39All of this is suggested in order that the prison sentence might finally participate in the mission of re-integration that has been assigned to it. For how can a prison that is “outside the law” ever teach its inmates to live within the law?
40TRANSLATION : Uri Ben-Gal