Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 1995 Sentencing Laws & Practices in France Richard Frase University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Richard Frase, Sentencing Laws & Practices in France, 7 FED. SENTENCING R. 275 (1995), available at https://scholarship.law.umn.edu/faculty_articles/514. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Federal Sentencing Reporter. Vol. 7, No. 6, May / June 1995 275 FRANCE SENTENCING LAWS & PRACTICES Table 1 IN FRANCE Incarceration rates in France and the United States (1991) Richard S. Frase* US. France ratio Inmates per 100,000 residents The French make very sparing use of custodial Convicted inmates only 409.1 50.1 8.2:1 penalties and punish most offenses with fines or All inmates 495.9 84.6 5.9:1 suspended sentences. France's less punitive attitude Inmates per 100 weighted adult arrests is evident not only in its sentencing laws and prac- Convicted inmates only 24.1 7.2 3.3:1 tices, but also at earlier stages of the criminal process: All inmates 29.2 12.2 2.4:1 in the legal definition of crimes; in the use of custo- dial arrest and pretrial detention; and in decisions While the ideal crime-related base for assessing about whether (and on what charges) to prosecute. relative sentencing severity would be the number of As a result of these policies, incarceration rates in criminal convictions per year in each country, France are far lower than in the United States, not weighted according to seriousness, no comparable only when compared to population (inmates per nationwide data exists for France and the United 100,000 residents) but also compared to the volume of States. American conviction statistics do not include serious crime. misdemeanor cases, and it is impossible to identify This article begins with a comparison of French and remove cases that correspond to U.S. misdemean- and U.S. incarceration rates.' It then examines French ors from published French statistics. sentencing rules and practices, as well as policies at The best available source for estimating the each of the earlier stages, all of which contribute to number of "custody-sentence candidates" in each the "bottom line" of low prison and jail populations. country is police statistics on the number of persons The article concludes with a discussion of the impor- arrested, cited, summoned, or otherwise charged by tance of viewing sentencing in a larger systemic con- the police. Such data use offense categories which are text, in which rules and practices at different proce- reasonably consistent across jurisdictions, and also dural stages (as well as even broader, societal factors) show the age of the offenders. (The large number of interact with and mutually reinforce each other. juvenile arrests in each country should be excluded in any measure of "custody candidates" since jail and I. FRENCH AND U.S. INCARCERATION RATES prison populations in both countries consist almost American observers have long assumed that entirely of adults.) sentencing in Europe is less severe than in the United Next, it is necessary to weight the adult-arrests States.2 It is difficult to statistically document that base according to crime seriousness. In particular, conclusion. To effectively measure sentencing violent criminals are more likely to receive lengthy severity in two jurisdictions, ideally one should custody sentences; thus, the same number of adult compare the type and severity of sentences imposed arrests will produce a much larger inmate population as well as average time-served for comparable groups if a high proportion of those arrests are for violent of offenders within fairly narrow and similarly- crimes. In Table 1, violent arrests are weighted, or defined offense categories. Unfortunately, very little multiplied, by a factor of ten.' such comparable sentencing data exists for France Cross-jurisdictional comparisons of inmate and the United States.3 populations should include local jail as well as state In the absence of adequate data, the only statisti- prison inmates. Some American states make very cal basis for international comparisons of sentencing heavy use of jail sentences in felony cases, 7 and most severity is data on the size of jail and prison popula- other nations report only aggregate inmate statistics, tions in each country. International incarceration without distinction as to place of detention. rates are usually expressed as the number of inmates Finally, it is risky to limit cross-jurisdictional "per 100,000 residents." But American crime rates per comparisons to convicted inmate populations because resident are much higher than French rates, especially different jurisdictions often use different standards for violent and drug crimes,4 and this difference may for determining when an inmate is "convicted" - it at least partially explain the much higher American might be as early as the entry of a verdict or plea of per-resident incarceration rate. Nevertheless, as guilty, or after sentencing, or even after appeal, or shown in Table 1, U.S. inmate populations are also expiration of the time to file an appeal.8 Another much higher when compared to the volume of seri- problem is that many "unconvicted" inmates are ous crime (weighted adult arrests).' serving what will later be deemed their entire "sentence" or part of it. The frequent practice of * Benjamin N. Berger Professorof Criminal Law, Univer- granting credit for time spent in pretrial detention means that many defendants sentenced to custodial sity of Minnesota Law School. He is a member of the FSR terms spend little or no time as "convicted" prisoners. Advisory Board. 276 Federal Sentencing Reporter. Vol. 7, No. 6, May / June 1995 FRANCE Counting only the latter inmates thus substantially The third category, crime, includes a few, understates the true volume of custodial sentencing extremely serious offenses such as murder, mutila- and may distort cross-jurisdictional comparisons. tion, armed robbery, rape, and very high-level drug Therefore, one has to count all inmates regardless of trafficking. Crimes account for less than two tenths of their official legal status as "custody-sentenced." one percent of all court-imposed sentences. They are When all inmates are counted, the U.S. incarceration punishable with fines and with imprisonment rate with regard to weighted adult arrests is still (offense maxima are 15, 20, 30 years, or life). Forfei- almost two-and-one-half times the French rate. ture, business closing, publicity, and loss of rights may also be ordered, if specifically 3 authorized for a II. FRENCH SENTENCING RULES AND particular offense. PRACTICES A. Authorized Penalties B. Other Important Sentencing Rules The basic parameters of the sentencing decision All of the penalties described above, except for are the nature and severity of authorized sentences. prison terms of over five years, may be suspended. 4 In France, a very large number of minor offenses, "Simple" suspension (with no conditions other than which account for over three-quarters of all court- good behavior) is available to defendants who have imposed 9 sentences, are not subject to incarceration. not received a custodial sentence during the previous These contraventions are punishable by a fine, forfei- five years. Expungement occurs five years after the ture of objects or privileges, or up to 120 hours of suspended sentence was pronounced, unless the community service. 10 The range of objects or privi- defendant receives a new custodial sentence during leges subject to forfeiture is broader than in most that time. American jurisdictions. In addition to surrender of "Suspension with probation" (for a term of 18 to weapons and the instrumentalities or fruits of the 36 months) or "suspension with community service" conviction offense, defendants may temporarily lose (for up to 18 months) are available regardless of prior the use of their vehicle(s) and/or their driving, record. If the defendant complies with the conditions hunting, check-writing, credit-card-usage, or weapon- of probation or community service, and receives no carrying privileges, even if the conviction offense did new custody sentences during the period of supervi- not involve the use of these objects or privileges. sion, his suspended sentence and conviction become Ordinarily most of these sentencing options may not void. If a new custody sentence is received during be combined with a fine. Some options must be that period, the suspension would normally be specifically authorized for the conviction offense. revoked. However, the court can (if it states reasons) More serious, jailable offenses are of two types, order that the suspension not be revoked; in that delit and crime. The "middle" category of delit case, the suspension apparently remains eligible for accounts for almost all of the remaining court- expungement on the original schedule, i.e. five years imposed sentences; it includes many offenses which from the date of the first sentence. would be misdemeanors under American law (such A number of other features of French sentencing as minor thefts), as well as most of the cases which law serve to shorten or avoid the use of custodial would be felonies, including aggravated assault, sentences. First, in cases of delit or contravention burglary, grand larceny, and most drug crimes. Delits courts have broad power to postpone or dispense are punishable with one or more of the following: with any penalty.'- Second, the maximum autho- imprisonment (up to ten years, for the most serious rized prison terms for common property crimes such delits); fines or day-fines"; up to 240 hours of commu- as burglary, larceny, forgery, and embezzlement are nity service; forfeiture of objects or privileges (for lower in France than in most U.S.