Too Many Prisoners

France may have too few cells, but it also has too many prisoners. While France’s current rate of 109 inmates per 100,000 inhabitants remains lower than in Britain or Spain, and a far cry from the eye-watering 531 recorded in the United States, it is higher than in most other Western European countries.

It has also risen faster than almost anywhere else in Western Europe in recent years, with a 15 percent hike between 2005 and 2022 — as against a drop of 7 percent across the English Channel, of 17 percent in Spain, 30 percent in Germany, and over 40 percent in the Netherlands.

In France, over the past few decades, “we have seen a dynamic in which the number of prison places grows, but the number of inmates does so too, and the problem of overcrowding persists,” Gilles Chantraine, a research director at France’s National Center of Scientific Research (CNRS), told me.

The soaring number of prisoners is hardly the result of rampant lawlessness. While France has recently seen a spike in the reported cases of certain offenses, such as sexual violence and serious assaults, over the last four decades its overall crime rate has remained largely stable.

Instead, much of it has to do with the French criminal code growing steadily harsher over the past decades, with no exception since Macron took power seven years ago: 120 new offenses punishable by imprisonment were created or toughened between 2018 and 2023 alone.

Another factor is the growing use of fast-track procedures, which don’t leave the time to evaluate the best alternatives to prison for each convict and result in jail sentences eight times more often than normal trials, according to Missoffe.

And then there is the increasingly frequent resort to pretrial detentions, with the number of such inmates currently representing almost 40 percent of the total prison population — up from 31 percent three years ago and twenty points higher than in Germany or Britain.

While much of western Europe has seen its prison populations balloon as a result of a “punitive turn” in the 1990s and early 2000s, many countries have since managed to reverse the trend by relying on alternatives to jail time such as house arrest and community work.

In France, too, in recent years governments have encouraged judges to opt for such alternatives when possible. French justice minister Éric Dupond-Moretti boasts that the number of places for “general interest work” has gone up on his watch.

But critics say that devoting the vast majority of resources to building new prisons means leaving peanuts for everything else. The 2024 budget includes €634 million ($694 million) for the new facilities, and only €52 million ($57 million) for alternative punishments — mostly to pay for the electronic surveillance of people under house detention.

The French criminal system remains “very prison focused,” said researcher Chantraine. Community work, in particular, is struggling to make headway. The available spots may be on the rise, but French judges take recourse to this only once per ten prison sentences — eight times less than their Dutch counterparts.

The alternatives to prison, both upon first sentencing and when it comes to early release schemes, often lack the necessary supervision, which in turn makes judges wary, according to Sébastien Nicolas of FO Direction. The union is proposing to create a new “probation police” to better monitor those benefiting from these measures. “Magistrates could rely a bit less on jails, that’s for sure, but they will only do so if they can be reassured that the alternatives are subject to a proper system of controls,” said Nicolas.

Paradigm Shift

To be sure, transforming a country’s approach towards criminal justice is no easy feat. In 2014, Christiane Taubira, the justice minister under the Socialist Party president François Hollande, sought a sweeping change of paradigm, introducing a new probation scheme with the goal of effectively replacing prison terms as the default punishment for a wide array of offenses. The measure was largely ignored by judges and then scrapped a few years later, under Macron.

Yet in early 2020, when the COVID-19 pandemic hit, the early release by decree of thousands of inmates close to the end of their terms, in order to prevent cases from surging in overcrowded facilities, contributed to bringing the prison population to its lowest levels in over a decade. For a few months, “the government fixed the problem of overcrowded prisons,” said Chantraine. “Many actors in the justice system discovered that it was doable, that it didn’t put French society in danger or trigger a massive rise in criminality rates. A new approach seemed possible,” he said.

However, calls on the government to use the momentum and curtail the role of jails for good went unheeded, and as soon as the health emergency was over the prison population quickly went back to, and then topped, its pre-pandemic levels. On average, between June 2020 and February this year, it has grown by five hundred people per month. The pandemic “was a missed opportunity,” said Chantraine.

In the 1970s, sociologist Michel Foucault’s groundbreaking Discipline and Punish pointed out how prisons played a key role in the development of modern Western civilization, becoming a model for the organization of other institutions as well — including schools, hospitals and the military.

Today, with the current government investing big bucks in new facilities, France’s justice system seems as prison-centric as ever. The question is whether more cells can offer a real solution to a problem that has been dragging on, and getting worse, for decades. A “zero delinquency” plan currently being implemented to clean up the Paris region ahead of this summer’s Olympics hardly bodes well for reducing the rate of detention any time soon.

“Yes, we need more prison cells, that much is clear. But we shouldn’t build them with the idea of filling them up. We must also develop the alternatives to jail time as much as possible,” said Nicolas. “In France, the attitude we have towards imprisonment is somewhat pathological,” he said.