International Journal on Criminology Volume 3, Number 2, Fall 2015 | Page 133

Advocating Balance in Penal Law and Penal Procedure
Actual imprisonment, inflicted on around 16 percent of prosecutable perpetrators,
remains a relatively residual response. 3 If, despite the wide range of options at his or
her disposal, the judge chooses to pass such a sentence, it is indeed because he or she
intends it to be effective. How then are we to understand the fact that that the judge
can then go on to apply reductions and adjustments to the penalty in court—that is to
say, at the very moment when passing sentence? The adjustment of the sentence must
remain within the competence of the liberties and detention judge; otherwise, a penal
response is scarcely intelligible.
Penal justice can suffer neither excess nor imbalance. The hope given by a
sentence nearing its end may encourage convicts to change their ways. In this sense, a
reduction of punishment for good behavior may make sense; but it must not become
a given. Knowing from the very day of conviction that the detainee will not serve all
of the time is something difficult to comprehend. We must give back some meaning
to the reduction of sentences by making it depend on the “merits” of the detainee, as
is the case currently with the reduction of supplementary sentences.
If the person reoffends, what sense does it make for him to continue benefitting
from these reductions? One must certainly leave the hope of making amends and the
chance to do so, and thus the possibility of a reduction in the penalty, but to a lesser
degree.
Moreover, passing a sentence does not necessarily mean that the sentence
will be served. Penalties of imprisonment for a duration less than or equal to two
years—one year in the case of reoffending—are generally not served, but are subject
to adjustments that weaken their meaning. Can a penalty of community work or
a fine be proportionate to a penalty of six months imprisonment? Can two years
imprisonment be exchanged for two years of electronic tagging at home, with the
authorization to go out to collect one’s children from school? It is a long time now
since we believed, with Cesare Beccaria, that “the certainty of punishment, even a
moderate one, will always make more of an impression than the fear of a terrible
penalty if this fear is combined with the hope of impunity.”
This accumulation of false notes ends up depriving the system of any and
all coherence. The mechanism of conditional release [liberation sous contrainte],
introduced by the penal reform of August 15, 2014, marks a departure in the logic of
the adjustment of sentences. Prior to the introduction of this option, adjustments had
to be solicited by the convict. The latter was thus encouraged to initiate steps toward
release, to seek a job, to compensate the plaintiff, so as to demonstrate a record of good
behavior likely to inspire a judge’s confidence in the success of the requested adjustment.
With controlled release, this is not at all the case. Once the convict has carried out two
thirds of his penalty, the judge for the execution of sentences is obliged to examine
the situation in the Committee for the Execution of Sentences—that is to say, during
an “administrative” meeting of the judge and rehabilitation professionals, without the
3
Source: Report of the Observatoire national de la délinquance et des réponses pénales for 2014.
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