Abstract
This concise volume (282 pages), edited by two German authors and one French author, comprises thirteen chapters written by a total of ten contributors, including the three editors. The contributors are adequately distributed between the two nations, France and Germany, where the studies reported on in the book were conducted. The contributors’ primary affiliations lie within the realms of political science and law, and to a lesser degree in media science. However, the three editors possess backgrounds in socio- or juri-criminology.
As rightly observed by the editors, it is crucial to disentangle from the somewhat self-centred Anglophone belief that their models, trends, and policies are automatically transposed and transferable elsewhere, particularly to continental Europe. Does Europe passively undergo Anglophone trends, becoming more punitive, or does it, as argued by Snacken and Dumortier (2012), resist this movement? Few empirical pieces of evidence seem to conclusively demonstrate either perspective. German criminologists may exhibit disagreements on this matter; the French-language literature, however, has been clearer on the existence of a punitive shift, whether in sociology, as noted by the authors, or in legal sciences. The authors examine resistance (or lack thereof) to punitiveness in three domains: the general population, politics, and the media. The editors explicitly state their reluctance to engage in a comparison between the two states regarding the level of punitiveness or to explain its causes. Instead, they aim to measure the representations, discourses, and policies surrounding punitiveness.
To achieve this goal, the authors have concurrently undertaken four particularly impressive parallel projects, with their methodology elaborated in detail in Chapter 4 authored by Jobard, Hubé, Laumond, Morisse, Nickels, and Ruffio. In the introductory chapter (Chapter 1), these projects are referred to as ‘packages’. Package A outlines legal systems and potential penalties. Package B has a more empirical focus, centring on public opinion. It relies on a questionnaire distributed to a representative sample of 3000 individuals, including several vignettes. Notably, one vignette, presented on page 66, offers as many as ten decision/penalty options explained in clear terms to participants. The authors subsequently compare the opinions of the general population with those of 721 judges and prosecutors in France and 800 in Germany. Moreover, a card game has been proposed to a total of 145 individuals in both countries, comprising 25 vignettes. This method is probably more effective than qualitative interviews in exploring the foundations of participants' opinions regarding deemed appropriate penalties. Package C delves into the realm of politics. A total of forty parliamentarians from both countries have been subsequently interviewed, encompassing specialists in CJ as well as those less versed, with an attempt to achieve political and geographical diversity. Package D studies the quantitative and qualitative evolution of headlines, collecting no fewer than 4200 since 1971, spanning both serious print media and tabloids. Subsequently, French and German journalists from both print and audiovisual media have been interviewed. Lastly, the authors consolidate these various packages into a final ‘Package D’, which essentially represents a form of discussion–conclusion (Chapter 8).
The first substantive chapter, authored by Drenkhahn, Makowka, and Nickels, focuses on the analysis of the legal situation in Germany and France. The authors adeptly summarise criminal law, both substantively and procedurally, in both systems. However, they overlook an intermediate component unique to the French criminal procedure code, Article 723-15, involving the sentences’ implementation and reentry judge (juge de l’application des peines – JAP). This judge has the authority to transform custodial sentences of up to 12 months into alternative measures or sentences at this stage. Article 723-15 spares thousands of individuals from incarceration each year (up to 30,000 at its peak before 2019 – Delbos, 2016) and represents a unique measure of penal moderation. Broadly, the chapter excludes the analysis of sentences’ implementation law, a legal domain that would have ideally illustrated tensions between moderation and punitiveness, the culture of social integration, and the struggle against carceral overcrowding and the growing prison services’ influence on norm production, notably in order to instrumentalise sentences' implementation so that it supports internal order and security.
Furthermore, the authors note the ‘bifurcation’ between the pretrial and sentencing phase. The authors unfortunately miss the point when analysing the role of French public prosecutors. It is indeed incorrect to assert that the principle of the separation of functions (prosecution and judgement) is respected, as prosecutors effectively steer cases based on the desired outcome, particularly towards the numerous procedures over which they have complete control from prosecution to decision-making. It is also inaccurate to claim that policies do not influence prosecutors. While individual instructions are rare, prosecutors’ careers are largely dependent on their ability to align with the orientations of the Parisian executive and most readily comply to boost their careers.
The next chapter, written by Drenkhahn, Jobard, and Morisse, presents the organisation and financing of the two countries. France is characterised by economic hardship, centralism, and bureaucracy, while Germany is federal with local governance and significantly better resources. The chapter then provides statistical data to measure the evolution of both countries since the 1970s, rightly noting that access to these statistics is challenging in France. An additional achievement lies in the comparison of clearly non-comparable data, notably because the data on procedure led alternative to trial procedures, increasingly predominant in France, are not well-documented. Overall, the number of cases processed has increased in both countries. Approximately half of criminal cases are either closed by public prosecutors (Germany) or directed towards non-trial criminal procedures managed by public prosecutors (France). The number of convictions per 100,000 inhabitants increased until around 2007, after which it declined. However, the proportion of custodial sentences in France is nearly three times higher than in Germany, despite the greater number of alternative sentences available in the penal code, contributing substantially to France’s issue of prison overcrowding. In Germany, the number of inmates has decreased since the 2000s due to declining birth rates and, perhaps in part, the redirection of ‘dangerous’ individuals to forensic structures.
Chapter 5, authored by Jobard, presents the results of Package B, titled ‘What would you do?’. It is by far the most interesting chapter, as no prior study of this kind had been able to provide insights into the true comparative state of public opinion, not even the more rudimentary International Crime and Victims Survey. I will elaborate a bit more on its results. In this context, the Germany/France comparison reveals a clear contrast. While two-thirds of Germans would oppose the reinstatement of the death penalty in the most severe cases, 60% of the French either support it or are not opposed. Regarding the purposes of punishment, 25% of the French respondents refer to retribution, while 33.5% of Germans mention the protection of society. Germans and French people converge in rejecting restorative justice and rehabilitation – supported by only 21.8% of Germans and 13.5% of the French, respectively. Nevertheless, crime is not a primary area of interest in both countries, and both populations seem equally divided between those who believe the CJS does a good job and those who do not or are unsure. Over 61% of both populations also believe that harsh sentences are effective. However, the French and Germans are relatively close regarding the sentences they would prefer, with a clear preference for fines. Unfortunately, it is impossible to describe in detail the other responses, which are particularly complex and fascinating. It is worth mentioning, however, that while they judge recidivists more severely, both Germans and French do not rule out probation. Conversely, in situations where a sentence would be manifestly unjust, both populations favour dropping the case. Germans and French people, however, want to see the perpetrators of domestic violence and drunk driving incarcerated. Magistrates, although close to the general population in their views, are slightly less punitive, opting for less incarceration and shorter durations.
The card game, as reported by Bénédicte Laumond, documents the reasons why citizens would choose a particular penalty. This qualitative study finds that when individuals reason deductively, they select penalties based on classic penological theories, with the most frequent German and French responses being retributive, followed by utilitarianism. When individuals reason inductively, they rely on different grounds than classical theories, namely, returning individuals back to the community, or, conversely, in the most serious cases, removing them from society, or paying the price for breaching the social contract.
Laumond, accompanied by Morisse, asks politicians whether the development of a punitive rhetoric has boosted their career. At the national level, it is not the case in both France and Germany, and in some cases, quite the opposite, except for a few individuals, such as Nicolas Sarkozy. However, punitiveness moderately assists the careers of parliamentarians. Nevertheless, as argued in the following chapter authored by Laumond and Zum-Bruch, MPs do resort to crime governance. The authors posit that this governance is explained by a lack of understanding of public opinion expectations. Beyond their public ‘for show’ postures, however, MPs are aware of the complexity of public expectations. Some of them also express dissatisfaction with crime governance.
In the next chapter, Johanna Nickels expresses surprise at the fact that while international (non-legal) literature suggests that France and Germany have moderate penal policies, the literature from both countries argues that they have become more punitive. Nickels, whose thesis focuses on this, verifies it quantitatively (the number of legislative texts) and qualitatively (the punitive nature of the texts) for the period from 1995 to 2019. Quantitatively, she finds an increase, albeit less pronounced in Germany. Qualitatively, punitiveness primarily applies to offenses against people or against the state or penal regime in general. However, this punitiveness is not manifested so much by an increase in penalties as by the CJS’s net widening to cover new offenses but by the broadening of their scope. It is important to note, however, an important methodological limitation in this part of the study. Indeed, in the context of the French legal system, focusing solely on legislative activity in the strict sense creates a considerable blind spot, as the 1958 constitution grants the executive a considerable field of intervention (both autonomous and in the application of laws), which it utilises extensively. Another significant blind spot lies in focusing only on changes in the criminal code – a limitation acknowledged by the author – while the most significant changes have occurred in the criminal procedure code. This obscures the major evolution of recent years: the inclusion in the CJS of numerous (petty) offences previously dismissed and now fully processed and handled by public prosecutors. Moreover, these changes have been not only procedural and, thus, contrasting between punitiveness, efficiency, and liberalism but also normative, encompassing both substantive and procedural issues related to the implementation of custodial and community sentences, as well as parole and other release measures. This blind spot leads to insufficient visibility regarding the nuances of the repression/liberalism ratio and, given how norms are created in France, fails to see that considerations disconnected from punitiveness are in command (notably overcrowding, bureaucracy, and [prison service] executive overbearing omnipotence).
Nicolas Hubbé and Claire Ruffio contribute to the chapters related to the media, which play a central role in shaping public perception regarding crime issues. While Germany more distinctly distinguishes between tabloid and non-tabloid general press, in France, even mainstream newspapers have undergone a phenomenon of tabloidisation in recent years. On an individual level, journalists seem to be less influenced by the quality of their media or its political stance than by their specific audience. Similarly, while sensationalism – with some moderation and ethical restraint, except in matters of terrorism – is not absent from the media in both countries, they strive to contextualise; the authors refer to this as thematic framing. However, this traditional caution is perceived to be threatened by the digitalisation of media.
The final chapter, authored by Drenkhahn, Jobard, and Singelnstein, summarises the results of the various studies reported in Impending challenges to penal moderation and reports on its most overarching outcome, namely, the ambivalence of penal restraint in France and Germany. Fundamentally, the book confirms that both countries have experienced an increase in punitiveness, but this has not been as abrupt or radical as in the Anglophone world. In essence, the two Continental European states exhibit moderation for the ‘run of the mill’, and punitiveness for the ‘dangerous’, following the evolution predicted by Bottoms a few decades ago (Bottoms, 1977), although this ‘bifurcation’ is considered as being moderate by Drenkhahn and colleagues. Drenkhahn and colleagues also note, in contrast to Anglophone countries, that German and French populations and practitioners are much more focused on individualisation, and parliamentarians and media are less swept up in penal hysteria than elsewhere. Furthermore, a greater emphasis on human rights, coupled with limited financial resources, reduces any inclination to industrialise incarceration. Nevertheless, forces are at play that weaken penal moderation.
In conclusion, I strongly recommend reading this work, which reports on a multi-dimensional study of significant scope, with impeccable methodology, and focuses, for once, on continental European states rather than Anglophone ones.