Ineffective, degrading and costly, the French prison system has become mired in a morass that serial reforms are struggling to reverse. Can we close the prisons and learn to punish differently? There is no shortage of alternatives for moving from punishment to rehabilitation.
« When I go to prisons, I am always accompanied by journalists because I am convinced that what happens there must be set in stone. It is in her office in the Senate that Esther Benbassa receives us, but the elected representative is used to other terrains than the hushed corridors of the assemblies. Since her election in 2017, the ecologist senator has visited ten prisons and almost as many administrative detention centres. Within these walls, she has seen the violence, the threats, the alarming health situations and the dehumanising conditions of detention.
How did prison emerge and impose itself as an unshakeable institution, without theoretical justification? Why has detention and imprisonment been considered preferable when the system is so dysfunctional? Beyond Foucauldian theories on prison as a more general project of transformation of individuals, are there explanations for the existence and maintenance of prison when it has never been a means of punishing better, or punishing more humanly?
In Surveiller et punir, a reference work on the subject, Michel Foucault indicates that prison as a punishment for delinquency is a recent phenomenon instituted in the twentieth century, whereas it had long been reserved for prisoners awaiting a real sentence (execution, torture, banishment, etc.) or for populations considered deviant (the insane, the sick, orphans, vagrants, prostitutes, etc.) and whom it was desired to separate from ‘honest people’. But executions became increasingly discreet and the tortures, too violent, had to be replaced. Prison then became the default method of coercion, with deprivation of liberty being the most obvious, although it was soon challenged.
Beyond the deprivation of liberty, the objectives of the prison then evolved, integrating the total control of the prisoner through permanent surveillance (the panopticon), then the idea that the prisoner owed a debt not only to his victim but also to society as a whole (prison labour), and finally with the vision of the prison as a place of re-education and rehabilitation. These developments have shaped the prison of today, built around these four ideals. With very questionable results.
An inefficient system
For incarceration is in fact the most expensive sentence for society (€105/day/inmate, compared to €50 for semi-liberty, €33 for work release and €10 for electronic bracelets) and the least effective, since 63% of those incarcerated are re-convicted less than five years after their release, according to figures from the International Prison Observatory (OIP, which has lost two-thirds of its public subsidies in the last five years). The Ministry of Justice itself pointed out in 2014 that « recidivism is always lower after non-custodial sanctions ».
According to the OIP, « imprisonment increases the risk of recidivism, because it increases the identified factors of delinquency. Delinquent associates are encouraged, and prisoners are reinforced in their ‘delinquent identity’ by the way they are treated in prison, which feeds resentment towards the institutions. In addition, there are « difficulties in socio-professional integration, increased by a stay in prison: loss of employment, more difficult access to employment due to a « hole » in the CV, interruption of minimum social benefits, loss of housing ». Finally, the OIP notes that « marital difficulties are also increased. One in three marriages ends within the first year of imprisonment ».
Among the fundamental rights granted to mankind according to the 1789 Declaration of the Rights of Man and of the Citizen, only liberty is theoretically suspended for the duration of an incarceration. In practice, however, the prison sentence affects many other fundamental rights, such as civil rights, freedom of expression, family life, privacy, dignity, sexuality, access to health, education and culture…
Have we forgotten that Michel Foucault warned about these points as early as 1975? He pointed out that « prison cannot fail to produce delinquents. It manufactures them by the type of existence it makes prisoners lead: whether we isolate them in cells, or impose useless work on them, for which they will not find a job, it is in any case not thinking of man in society; it is creating a useless and dangerous unnatural existence. » Nearly 45 years later, in May 2019, the American scientific journal Nature, still insisted on this point, concluding that « imprisoning fewer people […] would have a relatively small impact on the level of violence in society, while alternative policies and actions to prevent violence would have a larger effect at lower economic and social costs. »
Inhumane prison conditions
It has to be said that prisons have often and for a long time been strongly criticised for their very difficult, sometimes inhumane living conditions, and for the lack of means granted to the institution in terms of infrastructure, staff and equipment. For Bruno Chudy, a prison guard since 1988, « overcrowding in prisons has always been a recurring problem. This inevitably involves violence in the cells: it is difficult to live with four people in 9m2. The warden, who has worked at Fleury-Mérogis and Baumettes, raises the problems of « intimacy, age differences, origin, religion », but also the « mixing of first-time offenders with repeat offenders », and the mixing of « all types of offenders and criminals ».
Yet the state has invested ten billion euros over the last thirty years to build 20,000 new prison places, without managing to solve the problem. More and more prisoners are crammed into prisons, leading to daily violence and lamentable prison management, » says Bruno Chudy. There are six showers for 250 inmates, walks are extremely limited, there is no work for everyone, individual cell confinement is impossible – even though it has always been the law – while, on the other hand, the mixing of convicts and remand prisoners, which is prohibited, is systematic.
The supervisor believes that people incarcerated for sentences of three months or less have « nothing to do in prison ». He cites in bulk the lack of a licence, repeat offenders of minor offences or convicts under the age of fifteen. « Prison has also become the antechamber for psychiatric patients who are in our prisons because of a lack of places in specialised hospitals, and all these people have to live together.
Senator Esther Benbassa agrees. « There are psychologically damaged people in the cells who have no business being in prison. They belong in a specialised institution. Moreover, during a visit to the juvenile prison in Porcheville (Yvelines), the first question that came to my mind was « What are these kids doing in there? They’re dropping out of school, they don’t go to school when they’re sixteen, the food isn’t suitable for teenagers so they eat crisps brought to them by their families and they’re overweight because they’re not occupied… Apart from two or three, they’re just lost kids. »
The Senator recalls an unannounced visit to Fleury-Mérogis, where she learned that a 25-year-old had committed suicide. « He was there for committing five offences. He was ashamed for his mother. He hung himself from his bed, the mother was told too late. This is what happens in these prisons. She therefore advocates alternative sentences. « For minors in the first instance, we should imagine day education centres, educators who follow them at school, to monitor their progress.
But she regrets the lack of resources. « There are not enough staff, not enough funds. The guards are poorly paid, they don’t want to do this job. In the Paris region, people finish school and move to the provinces. There are only newcomers who don’t know the psychology of the prison environment. Some people think that everything can be managed by violence. There is no money, there is no significant psychological follow-up of these people. Because some prisoners are violent, we must not enter the angelic world where everything is easy.
Prison, the preferred sanction
However, prison remains the preferred sanction for judges. According to official data from the ministry, the French justice system punished 550,000 offences in 2016, and in 52% of cases, judges requested a prison sentence. Alternative sentences such as electronic bracelets (11%) or community service (3%) are extremely minor in terms of convictions.
As a result, on 1 April 2019, the number of people incarcerated in French prisons peaked at 71,828, bringing the prison occupancy rate to 117.7%. Only Belgium (127%) and Hungary (129.4%) do worse, while the EU average is 94%. More than half of these prisoners (55%) have been convicted of minor offences (trafficking, theft, swindling, various offences, etc.). Worse still, in the remand prisons, which house people awaiting trial – and therefore presumed innocent – conditions of incarceration are harsher, and overcrowding is more marked (139% occupancy rate).
The trend towards systematic confinement seems set to continue, since the Keeper of the Seals’ prison plan provides for the creation of 15,000 additional places in the first place. Will this improve detention conditions? Not really. According to figures from the Ministry of Justice, suicide rates among prisoners are higher in the new establishments, which are built further away from city centres – and therefore far from families – and which operate in an ultra-secure manner but with fewer staff. France is regularly condemned by the French administrative justice system and by the European Court of Human Rights for « degrading human treatment ».
In order to improve the staffing rate in French prisons, which is one of the worst in Europe with one guard for every 2.5 inmates, Nicole Belloubet also intends to recruit 1,500 more guards. But they still need to be found. Indeed, the profession is facing a major lack of attractiveness: according to official figures from the Ministry of Justice, 2,500 guard positions are currently vacant due to a lack of candidates.
A global failure
The problems of incarceration are not unique to French prisons. This failure is much more global, so much so that we can legitimately ask ourselves how this violent and unequal prison system is never called into question, why alternatives do not gain more ground.
As the undisputed leader in incarceration, the United States has seen its prison population explode since the « war on drugs », launched under Nixon and continued under Clinton with highly repressive laws. The country alone has a quarter of the world’s prison population, leading American journalist Jeff Gerrit to say that « mass incarceration is the most disturbing social, economic and human rights problem » in the US. But again, this ultra-repressive policy has, according to several local studies, contributed very little to the reduction of crime, and the United States, where two out of three prisoners will be re-convicted within five years of their release, has one of the highest recidivism rates in the world.
As for prison conditions, there is no shortage of documentation describing its brutality, violence and inhumanity. Just last year, under the pen of Frédéric Autran, Libération recounted tragic and recurrent episodes that occurred in various institutions: « A prisoner died of thirst after being deprived of water for a week in Milwaukee in 2016. Another, in Mississippi, was beaten by fellow inmates for fourteen minutes before guards decided to intervene. A third, suffering from schizophrenia, was tied naked to a restraint chair for forty-six hours in a California prison, then untied and left to die on the floor in agony, forty minutes later from a pulmonary embolism, the result of his prolonged immobilisation.
All the more so since prisons lock up rich or poor, white or black, in an unequal manner, and class justice operates at full speed, particularly in the United States, where « the convergence of racism and criminalisation » has made black Americans the main victims of American prison policy: African-Americans represent 13% of the population, but nearly 40% of the country’s prisoners.
In France, too, it is difficult to believe in « all equal » in court. In a comprehensive report published in June 2019, the magazine CQFD details how « prison is finally proving to be a laboratory of choice when it comes to thinking about social criticism. Like a magnifying mirror of the system’s ills – which, far from solving them, actually aggravate them – the prison world provides information on the relationships of domination and the reproduction of inequalities that run through the whole of society. From imprisoned minors to the confinement of foreigners turned away and deported across borders, not to mention the crass sexism that prevails behind the walls of women’s prisons.
The fact remains that alternatives to imprisonment are still the exception. Norway, often the standard bearer on the subject, thinks of its prison system in a radically different way, since it rejects the notion of punishment and places rehabilitation at the heart of the justice process. With a recidivism rate that falls below 20% – the lowest in the world.
The prison on the island of Bastøy (to be discovered in our « Reports » section) spearheads the project, where 115 inmates cycle freely, grow organic fruit and vegetables (which they eat), raise animals, repair objects, study, go to the beach, fish and play football…
Tom Eberhardt, director of the institution, believes that « public officials need to understand that being tough on criminals and locking people up for a long time in bad conditions does not help society at all. History has taught us exactly the opposite. By doing so, we only make our streets more dangerous, releasing a lot of anger and bitterness in the prisoners. As the head of this unique prison since 2013, he advocates for massive investment in rehabilitation. « It is by investing in a rehabilitation programme, rather than in buildings, that we can work to solve the problem of recidivism. When you want to improve the efficiency of your prison system, you should not only invest in new cells, but also and above all in educational, psychological or health programmes, in specifically trained staff, and generally in ways to rehabilitate rather than punish. »
« Rehabilitate rather than punish »: a maxim that would undoubtedly struggle to gain acceptance in France. Dominique Raimbourg and Stéphane Jacquot, authors of Prisons, le choix de la raison, explain that « for the French, the prison and its high walls are first a symbol, then a tool to put away the guilty » and underline the difference in mentality between French and Norwegian justice: « where France primarily represses the actions of the criminal, the Norwegians are more attentive to the apprehension of the future. This is a real obstacle to such a radical change, to which is added an economic limit. « It should be remembered that Norway spends five times more per capita than France on justice. Would our country be ready for that? At the level of Norway, perhaps it would be difficult.
Esther Benbassa, for her part, approves of the Norwegian model and proposes « open environments », focused on reintegration, as there are too few in France (Casabianda, in Corsica, and Mauzac, in Dordogne, total 563 places, or 0.9% of the prison stock). « We need to increase funding, train people and add more doctors, because sick prisoners don’t have their hepatitis or HIV treatment. The prisons are in bad shape, the rooms are filthy, overcrowded, the prisoners sleep in the light… The directors are generally very authoritarian personalities.
Several movements, several ideas
While waiting to « completely rethink the prison », the Senator wants to reorganise the shortest sentences. « This would involve community service, internships, supervised apprenticeships, an increase in the use of electronic bracelets, training with craftsmen, housing for people… ». And to insist on reintegration, whose budgets, already minimal, are regularly decreasing. « Rehabilitation is not a miracle, it must be prepared before release. When you think about punishing before you think about reintegrating, you create recidivism.
25 million, or 0.8% of the total budget of the prison administration. Out of the 2.8 billion euro budget, one billion euros is sucked up by the construction of new establishments and the upgrading of insalubrious prisons, while expenses related to the security of establishments (video surveillance, fences, etc.) are skyrocketing, provoking the desolation of the guards’ unions.
Dominique Raimbourg and Stéphane Jacquot propose other avenues, notably « reducing the time taken to bring cases to trial », or « upgrading the status of prison staff ». They also note that « restorative justice has a positive effect on the fight against recidivism in countries where it is practised ». Still not very developed in France, it consists of bringing together victims and perpetrators, whether or not they are involved in the same case, to re-establish social ties, better understand the consequences of the act and find solutions to overcome it. « Based on exchange and interaction and going beyond judgement and punishment, restorative justice seeks to bring peace in dramatic circumstances and provides a response to the misunderstandings that result from the act », explain the two lawyers, who also mention the possibility of a significant reduction in the number of prisoners. « Other neighbouring countries have a much more constructive prison policy. Germany has reduced the number of its prisoners. Holland and the Scandinavian countries have lower incarceration rates than we do without affecting the security of those countries. Even Barack Obama, when he was president of the United States, the country with the highest incarceration rate in the world, expressed doubts about the effectiveness of this type of repression.
More radically, several movements of thought oppose the very principle of prison, with arguments that are sometimes philosophical, sometimes political, and sometimes also very pragmatic: libertarians who militate against prison as an instrument for exploitation rub shoulders with abolitionists who describe prison as a harmful and criminogenic institution, or others who believe that new biometric technologies would make it possible to do without confinement.
Shifting justice to the future
So is a country without prisons possible? Probably not. In Surveiller et punir, Michel Foucault wrote: « One fact is characteristic: when it comes to modifying the regime of imprisonment, the blockage does not come from the judicial institution alone; what resists is not the prison-penal punishment, but the prison with all its determinations, links and extrajudicial effects; it is the prison, a relay in a general network of disciplines and surveillance; the prison, as it functions in a panoptic regime. This does not mean that it cannot be modified, nor that it is once and for all indispensable to a type of society such as ours.
Opinion is changing as awareness spreads. In a survey commissioned by the Paris Bar Association, 62% of French people consider the prison system to be deficient, and 80% of those polled believe that « prisoners are frequently subjected to verbal, physical or sexual violence ». The people questioned were very open to alternatives to imprisonment: 63% said they were in favour of transforming sentences of less than 5 years into community service for young convicts, and 57% were in favour of serving sentences of less than 5 years in open prisons.
These are all prospects that could lead the French justice system to rethink its action. Because, obsessed with the past and the present, with punishment and sanction, it has no doubt forgotten to prepare for the future, as if the constraint applied to the guilty party were more important than the collective fate of society.
Sources : Survey for the Paris Bar Association conducted from 18 to 19 June 2018,
Ministry of Justice, CQFD, International Prison Observatory, Liberation