Two prison ‘sort of’ studies

Prof. M. H-Evans, PhDRheims Uni, Law faculty

Who I am: prison work My major has become release, probation and reentry

But I started out with prisons and release. My PhD: La gestion du comportement du détenu. L’apparence légaliste du droit pénitentiaire, Poitiers, 1994 (published in 1998, Paris, L’Harmattan Managing prisoners’s behaviour through Fictitious legal regulations)

I did years of legal lobbying in order to contribute to the development of fair trial, legal fairness in prison law, and judicial review. (in particular with French NGO Observatoire international des prisons and colleague Eric Péchillon, Rennes Uni.). With some success, inter alia:

-fair and judicial review of disciplinary decisions; - clearly defined and limited prison sanctions; - fair and judicial review of quasi-disciplinary decisions (solitary confinement, punitive transfers, visitation

right removal…); - limitation of and judicial review of body searches.(naturally there are also other factors that led to these successes)

- parallel to this fair trial and judicial review of all release and breach decisions (this one is currently under threat with upcoming law)

 

Who I am: prison workLatest: Droit pénitentiaire (Prison law), with Paris, Dalloz (1000+ p.), 2012-2013

And other studies:- Prisoners and their families intimacy in comparative law ( L’intimité du détenu Et de ses proches en droit comparé, L’Harmattan, 2000)

- Prison escape (L’ évasion, L’Harmattan, 2009)

- Prisons and the city (La prison dans la ville, Erès, 2009)

And… mothers & babies in prison studies (eg in English:  ’Mothers and Babies in French Prisons Book chapter, in G. Eldjupovic and R. Jaremko-Bromwich (eds.), Incarcerated Mothers. Oppression and Resistance, Demeter, 2013 : 70-81

Hereafter: two - sort of - studies. An old ‘Ghost study’ I am only starting to codeand a ‘quasi study ‘partly based on my own experience in the field.

Study 1: French prison guards Goals: 1) See if the prison services would let me partially replicate A. Liebling’s research (Moral Performance, 2004) 2) modest: just determine within Liebling’s framework what are French prison guards’ professional values and satisfaction with their job. 3) keep the appreciative inquiry stance by focusing on the positive. The title thus was: ‘professional satisfaction and values of French prison guards’

Method: 1) use A. Liebling’s moral performance prison guards’ questionnaire (as a written

questionnaire – with her permission to translate and use it) 2) qualitative interviews using as a framework the moral values she found in Moral

Performance… (dignity, humanity, justice, respect, trust, camaraderie – see infra…) and add two/three French ones (eg. public service, deontology).

Since I teach in three Universities (Reims, Nantes and Agen) I could choose several sites and work with a group of seven students who investigated in a variety of prisons: West coast, Corsica, East of France, Paris, all categories of prisons. (high security, medium security, remand and short sentences)

Study 1: French prison guardsUntil the start of this research I never had to ask for the national

headquarters permission to do prison or probation studies: I asked and easily obtained permission from local prisons or authorities. This changed with this research….

National headquarters demanded I ran my research through them and immediately stopped=> left my students & I in limbo from October 2011 to April 2012.

April 2012 we got a firm refusal from the prison services director himself. There was only one reason given: Ms Liebling’s

questionnaire ‘contains « ethnical prism » questions’ that are not admissible.

The prison director had incidentally relabelled the research: « satisfaction and dissatisfaction of prison guards »

Study 1: French prison guardsI had told the prison headquarters I would allow my students to do their research in any way possible… if they remained silent past March 2012. Since they did… we continued the research.

1) We went through unions, friends, NGOs, one of my students’ Uncle who was a prison guard himself, prison guards’ forums.2) One of my student, in Agen, being a prison guard in Corsica, managed to distribute the questionnaire to some of his colleague.

=> a mismatched sample Still we got: 28 interviews of prison guards (ordinary guards: N25 + 3 officers) and 86 questionnaires (80 ordinary guards; 6 officers) from september 2011 to June 2013.

Study 1: French prison guardsBecause it is mismached and because it was stopped by the national headquarters, I haven’t published anything. I am currently coding the interviews. Cannot use ‘Liebling questionnaire’ results because this is what I was technically banned from doing (meanwhile a Canadian researcher was later allowed to use it… http://psychocriminologie.free.fr/wp-content/uploads/Focus-sur-une-Recherche-en-cours.pdf ). But here are the (very) general and (very) cautious results:1) None of the interviewees chose to be a prison guard as a ‘vocation’ – big surprise! - but because they

needed to pay their rent and it pays rather well + some were sick of working away or outside (truck drivers or builders);

2) Still this is a job most learnt to like (love);3) Most expressed pride in doing a public service job involving human relations skills and helping others –

some said contributing to reinsertion;4) They clearly had human skills that went largely unoticed;5) And their local management was often rigid and did not notice their good work, did not listen to them;6) They were particularly critical of the national headquarters as being completely removed from the field

&never listening to staff’s needs. 7) It is clear that finding the right distance with prisoners is 8) a particularly complex task (Liebling, Price &

Shefer, The Prison Officer, 2d ed., 2011, willan)9) They pretend they do not feel emotions but their replies to several questions Contradict this = there’s enough material to focus specifically on Fr. Guards & emotions10) Overall they belong to the classic old school guard category, but most do notoppose the legalistic changes of the past few years (some I am guilty of forcing onto the prison services); quite the contrary they seem to have embraced them as a proof of letigimacy.

Study 1: French prison guards The values listed in the framework for the interviews: - dignity; - humanity; - attentiveness - care - public service - justice - ethics and deontology; - decency; - competence, professionalism; - appropriate distance; - coherence, predictability; - authority and power; - good order; - security, protection - disciplining and boundaries - being an example - education and reinsertion - knowing inmates and the prison - respect - trust - being appreciated and valued - well-being - friendship and camaraderie - Loyalty and solidarity - supporting and helping offenders - empathy - pride - emotion

‘Study ’ 2. French disciplinary hearings A few important dates; 1995. Marie case, Conseil d’Etat (highest admin. Court): judicial review for prison

disciplinary sanctions

1996 decree integrates Marie and - lists all disciplinary offences in the Penal Procedure Code (PPC) based on a three tier system:

first degree, second degree, third degree; - Lists all disciplinary sanctions in the PPC + their exact duration and conditions - confirms that a Disciplinary Commission (: the governor + 1 guard & 1 higher rank prison

officer) makes the decision

April 12, 2000 Act: a general administration & citizens Act allows attorneys to defend citizens facing negative adm decisions. Péchillon & I argue it applies to prison disciplinary commissions = confirmed by the Conseil d’Etat in October 2000.

November 24, 2009: Prison Law: - limits duration of disciplinary cell (max 20 days 30 if violence; 14; 7) - includes a community assessor into the disciplinary commission

‘Study ’ 2. French disciplinary hearings Mid 2011 I become an assessor at my local prison. A remand and short (up to 2 years) prison with between 200 and 300 inmates.

I decide to:- Write a feedback paper based on my experience (legal and factual) and a questionnaire filled in some of my local peers and other assessors. So far N8.= small publication in a Law journal (Ajpénal, November 2013) - Jan 2014. I joined the new prison assessor network (ANAE); - May and June 2014: I’ll train prison guards and prison chief locally (with their

incident reports & investigations) => turned into a regional training session (=>systematic legal study on the typical “blunders” in the files opportunity, which will give more depth to what I am about to describe)

‘Study ’ 2. Findings OffencesFrequently: inmates are charged for the wrong offences. Admin. Courts allow the commission to change the charges on the day of the hearing (Admin. Trib.Nantes, 5 oct. 2011, no 0805737, unpublished; Admin. Trib. Grenoble, 24 May 2000, Guégan, no 9703617, D. 2002. chron. 117, E. Péchillon)

Most frequent offences in a remand and short sentences prison: - inmate on inmate assault;- inmate on guard insults or threats ; - drug or cell phone smuggling (usually thrown from the outside into the

courtyard) and climbing up the fences to retrieve packages; - refusal to enter the cell or to remain on a floor or wing following inmates’

disputes.

These offences are usually linked to debts, trafficking, smuggling, and to poverty

‘Study ’ 2. FindingsOffences. Antediluvian issue: violation of internal regulations art. R 57-7-3,4° of the penal procedure code : it is a third degree (misdemeanour) offences.

When in reality inmates do not have a copyof these regulations (nor assessors & attorneys)

…and when the prison is not in a capacity to actually implement them too strictly, thereby creating expectations from inmates (Chauvenet A., Orlic F. et Benguigui G. (1994), Le monde des surveillants de prison, Paris, PUF  ; Herzog-Evans, 1994, 1998)

‘Study ’ 2. Findings‘I do know that I am committing an offence by calling from my cell.’‘Get me an unlimited voice plus text messages package!’

‘Study ’ 2. FindingsSanctions

‘Solitary’ used to represent Roughly 70% of all sanctions.

These days? No statistics!

‘Study ’ 2. FindingsSanctionsIn practice solitary confinement may be pronounced depending on:- how serious the offence is (= the law); - its impact on the other inmates and on the guards (: not

the law); - the number of solitary cells which are available & who is

curently in them! (definitely not the law!)In ‘my’ local prisonsolitary confinement very rare except in assault cases or

very serious offences;most frequent sanctions are: warning, suspended

disciplinary cell or confinement in one’s cell.

‘Study ’ 2. Findings Offenders. As the literature has shown (Glaser W. & Deane K. (1999), ‘Normalisation in an Abnormal World : A Study of Prisoners with an Intellectual Disability’, International Journal of Offender Therapy and Comparative Criminology, 1999, n° 43 : 338-356; Felson, R.B., Silver . E. & Remster B. (2012), ‘Mental Disorder and Offending in Prison ’, Criminal Justice and Behavior, n°39 :125-143; Pare P.-P. & Logan M. W. (2011), ‘ Risks of Minor and Serious Violent Victimization in Prison : The Impact of Mental Disorders, Physical Disabilities, and Physical Size ’, Society and Mental Health, n° 1(2) : 106-123)Intellectual disability, Behavioural problems & mental illness cases are re over-represented…

but go unnoticed (Hayes S., Shackell P. &Mottram P. (2007), ‘ The prevalence of intellectual disability in a major UK prison ’, British Journal of Learning Disability, n° 35(3) : 162-167  ; Brinded P. M. J., Simpson A. I. F., Laidlaw T. M., Fairly N. &Malcolm F. (2001), ‘ Prevalence of Psychiatry Disorders in New Zealand Prisons : A National Study ’, Australia N.Z. Psychiatry, n° 35: 166-173) by members of the commission. And is a taboo subject (‘This question is very shocking’)

‘Study ’ 2. Findings Procedure.

Incident reports typically without adequate details: Staff is not sufficiently trained

The investigation Not professional enough and does not look for evidenceVery little confrontations or witnesses

A culture where it is more important to let people expressthemselves (my prison) or remind inmates of boundaries than to find out what the truth actually is.

E.g. video recordings are hardly ever used

Against the backdrop of the current MoJ Bill which plans to go back to our Middle Ages where fair trial did not exist for release decisions, disciplinary procedure has become fairer.

Still attorneys and assessors have led to much quieter disciplinary trials

‘Study ’ 2. FindingsProcedure/fair trialAttorneys generally do not see patent causes of nullity.

There are huge differences between attorneys in terms of competence. The majority falls in themedium or incompetent (couldn’t care less) categories

So in practice: numerous due process violations.

‘Study ’ 2. FindingsAssessors: a democratic progress

But assessor recruitment varies considerably from one prison to another; the rule of minimal competence is not always observed. E.g. law students seldom admitted.

As a result some hearings are held without assessors, which is illegal if no or poor effort was made to recruit them (: Admin. Trib. Nantes, 19 juillet 2013, n° 110337, Ajpénal, obs. E. Péchillon, forthcoming; Admin Appelate Court, Nantes, 18 juillet 2013, n° 12NT03128)

‘Study ’ 2. Findingsthe assessor’s positioningMore often than not he/she has a hard time accessing the

fileIs often perceived as being an intruder

‘There’s a « classified » ambiance here’ (an assessor)

But things are radically different in the prison where I am an assessor:- warm welcoming of assessors (down to annual lunches);- we can ask questions during the hearing ;- we do indeed take part in the deliberation & our

opinion counts

Conclusion: the commission as a mediation ritual

Good practice: processing a great number of issues via the disciplinary commission and use it as pacifying tool, where people can express their feelings and solutions are found. It thus serves as a ritual showing ‘your problem is taken seriously’.

Local prison experience:« Citizen mediation » form of guilty plea with a zest of restorative justice(another interesting subject study)

Merci! Thank you!

http://herzog-evans.com martineevans@ymail.com

@ProfMEvans