A new risk management for prisoners in France: The emergence of a death-avoidance approach
| Author | Brice Champetier,Gaëtan Cliquennois |
| Published date | 01 August 2013 |
| DOI | 10.1177/1362480612467361 |
| Date | 01 August 2013 |
| Subject Matter | Articles |
Article
Theoretical Criminology
17(3) 397 –415
A new risk management
© The Author(s) 2012
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
for prisoners in France:
DOI: 10.1177/1362480612467361
tcr.sagepub.com
The emergence of a death-
avoidance approach
Gaëtan Cliquennois and Brice Champetier
Fund for Scientific Research (F.R.S.-FNRS), CRIDEP, Belgium
Abstract
A new punitive approach in the French prison sector has emerged as a result of the
European Court of Human Rights and the French administrative courts exerting
pressure on prison governors in response to the complaints made by prisoners’ families,
the demands of human rights groups and the requirements of human rights protection
bodies. By publicizing cases of suicide and using strategic litigation based on the right
to life, human rights groups and barristers have put the prison administration under
pressure. The resultant risk management policy and death-avoidance approach are not
linked to the decline of the welfare state, as claimed by new penology scholars, but
rather to a shared risk management thinking between the prison administration and
human rights groups.
Keywords
Courts, death prevention, French prisons, new penology, human rights groups
Introduction
While various legal scholars, sociologists and criminologists appreciate that there are
connections between human rights, risk and knowledge, much of their work continues in
isolation (Murphy and Whitty, 2007; Whitty, 2011). Lawyers, for instance, have not
stressed the role of risk management in human rights studies, while criminologists and
sociologists have paid little attention to human rights and court cases involving prisoners
Corresponding author:
Gaëtan Cliquennois, JURI, University of Louvain, 2 Place Montesquieu bte L2.07.01, 1348 Louvain-la-Neuve,
Belgium.
Email: gaetan.cliquennois@uclouvain.be
398
Theoretical Criminology 17(3)
at the national and European levels (Chantraine and Kaminski, 2007; Murphy and
Whitty, 2007). Although Feeley and Simon’s (2003) ‘new penology’ did point to the role
of civil litigation in spreading the model of risk to criminal justice, they did not take
human rights into account, reflecting the limited influence until recently, of human rights
norms and courts on US civil or criminal law. Indeed, large-scale law suits over medical
and mental health care filed during the last 20 years have culminated in 2011 in the
Brown v. Plata case demonstrating the importance of litigation. As stated by Simon
(2011: 251) himself: ‘Brown v. Plata represents a potential turning point, toward a future
where American political leaders and penal planners are forced to justify the comprehen-
sive effect of imprisonment on prisoners and public safety.’
Before the Brown v. Plata case, the approach of the ‘new penology’ was arguing that
the main emphasis of the prison administration was on efficient population manage-
ment and cost–benefit analysis (Feeley and Simon, 2003; Simon, 2005) and no longer
on the rehabilitation of individual prisoners, a characteristic of the former ‘correc-
tional’ penology. This shift between old and new penology appears to be a result of the
decline of the welfare state and a mark of the new management of poverty where the
poor are no longer disciplined and transformed but managed by risks (Brown, 2006;
Feeley and Simon, 1992). Influenced by the actuarial approach, penal administrators
aim to identify and reduce the risks of violence and recidivism among inmates by
selectively incapacitating certain offenders (Heydebrand and Seron, 1990; Pratt, 1995;
Walker, 1993). Individuals considered at high risk of recidivism are not to return to
society, leaving offenders with a lower risk of recidivism to benefit from parole and
conditional release (Auerhahn, 2003; Rose, 2000; Simon, 1993, 2000). Under this
approach, sentence-reduction policies, assignment and security programmes are the
preferred fields for the use of actuarial calculations (Cliquennois, 2006, 2009, 2013;
Liebling and Arnold, 2005).
Somewhat surprisingly, to date, scholars of the actuarial approach have ignored sui-
cide, even though it has been a prominent and recurrent subject of statistics since at least
the 19th century (Hacking, 1990: 66). This omission is remarkable, since the protection
of life and health has been a key issue for statistical analysis (Quetelet, 1869), a leading
claim of civil societies (Foucault, 2008), and one of the guiding principles of the European
Convention on Human Rights (Article 2) and of the European Prison Rules (Van Zyl
Smit and Snacken, 2009). For people confronted by ‘total institutions’ like prisons,
where inmates are highly vulnerable, the right to life is crucial (Goffman, 1961). This is
particularly the case in French prisons, where the rates of prisoner murders and suicides1
are the highest in Europe (Turner, 2006).
This article argues that various organizations motivated by a range of politics includ-
ing human rights litigation have come together to create an actuarial response to suicide
prevention that is punitive. In order to investigate this shared approach to risk manage-
ment between organizations, we will examine the rationale of the French suicide and
murder prevention policy and its impact on prisoners and prison staff based on: (1) a
study of the prison administration’s circulars and internal memorandums; (2) an analysis
of the case law of the European Court of Human Rights and the French administrative
courts and tribunals; (3) briefs filed by barristers and lawyers on behalf of human rights
groups; (4) indirect interviews with members of prisoners’ rights organizations;
Cliquennois and Champetier
399
(5) interviews with barristers who have represented prisoners in litigation against the
prison administration; (6) interviews with staff in the statistical department of the prison
administration; (7) interviews with staff in the prison administration’s suicide prevention
team; (8) interviews with members of the prison administration’s legal team; (9) extracts
from the archives of associations that campaign against suicide and murder in prisons;
(10) coverage in the French media between 1982 and 2008; and (11) extracts from the
reports of French human rights protection bodies.
As we shall explain in detail, the emergence of a rationale that combines a risk man-
agement approach with a death-prevention policy shapes the interactions between the
prisons, the European Court of Human Rights and the French administrative courts and
tribunals. All these courts exert pressure on prison governors, fuelled by complaints from
prisoners’ families, the demands of prisoner-welfare groups and the requirements of the
French human rights protection bodies. By publicizing prisoner suicides and murders,
these bodies have forced the prison administration to change its regulations to comply
with the European Convention on Human Rights. These pressures have resulted in a
model of prison administration where actuarial risk management thinking has been
sharpened and intensified. In contrast to the US literature on ‘new penology’, this ampli-
fication of risk has not been linked to the decline of the welfare state and to the new
management of poverty since the French Bismarckian model of welfare (introduced in
1945) was reinforced under the Mitterrand Presidency (in the 1980s and 1990s) and has
not radically changed—despite some medical care reforms—under the Sarkozy
Presidency (in the second half of the 2000s). Indeed, due to the continuity of the
Bismarckian model, Sarkozy’s neoliberal approach, in contrast to what happened in the
UK under Thatcher’s premiership, has not implied a replacement of the struggle against
poverty by a new model of management of the poor (Hassenteufel and Palier, 2007;
Palier and Thelen, 2010; Ramaux, 2007).
The first section of this article examines the recent history of the actuarial risk man-
agement of suicides and murders by the French prison administration. It brings us, in the
second section, to developments in case law regarding inmates’ rights to life and their
effects on the prison administration. In the third section, we examine the campaigns
focusing on prisoners’ rights and analyse their implications for the prison system. The
risk management thinking and its punitive aspects appear to be the consequences of both
human rights groups’ litigation and shared references between the prison administration
and non-governmental organizations (NGOs).
The development of specific actuarial risk management
and death-avoidance policies
The prevention of murders and suicides in French prisons is characterized by a death-
avoidance model and an actuarial approach that is close to HM Prison Service’s model in
England and Wales. As in England and Wales, the French prison service has adopted a
suicide prevention policy that seeks to prevent death and preserve life through an actuarial
approach. Gathering statistics and information, both systems attempt to identify risky
inmates, places and times, often creating different scales for treating those considered at
risk of suicide or self-harm (Liebling, 1992, 1995, 2001; Liebling and Arnold, 2005).
400
Theoretical Criminology 17(3)
A risk management approach to suicide prevention accepts some level of suicide.
Reflecting Foucault’s (2008) observation that the risk model tolerates the phenomenon
that has to be regulated, the goal of the French suicide prevention policy...
To continue reading
Request your trial