Rehabilitation within a Punitive Framework: Responsibilization and Disciplinary Utopia in the French Juvenile Justice System

A ‘carceralization’ of rehabilitative action

Incarceration statistics tend to be one of researchers’ preferred indicators when showing the prevalence, or absence, of a ‘punitive turn’ (Carrier, 2010). However, in the case of juvenile justice, the manipulation of this indicator makes interpretation of trends more complex than it first appears (Muncie, 2008). A good example is the recent decrease in the incarceration of minors in England and Wales, in the context of a growing emphasis on the use of extra-judicial measures for offenses considered less serious (Bateman, 2012). Focusing on the case of the United States, Daniel P. Mears emphasizes ‘state-variations’ in the realm of the incarceration of minors, encouraging a relativization of the hypothesis – which he himself formulated a few years earlier (Mears and Field, 2000) – a ‘generalized criminalization of the juvenile justice system’ (Mears, 2008: 484). France does not escape these complexities. Comparing juvenile court decisions within two time periods (1999–2002 and 2007–2010), sociologist and statistician Sébastien Delarre (2012) showed that the evolution of judicial practices has not followed the evolution of legislative bills and their accompanying punitive discourse (far from it). Whereas the number of incarcerated adults has continued to increase (Bérard and Chantraine, 2013), particularly since the late 1990s, the number of incarcerated minors has decreased from 4326 in 1999 to 3283 in 2001 (−24.1%) and from 3839 in 2002 to 3034 in 2014 (−23%).

As Figure 1 shows, this recent decrease in the incarceration of minors follows an increase observed in the 1990s (+62% from 1994 to 1999). But this increase itself followed a sharp decrease in the incarceration of minors in the late 1980s resulting from two laws (in 1987 and 1989) that aimed to limit the use of provisional detention. Thus, the number of incarcerated minors never attained the record levels reached in 1981 and 1987, ³ in the heyday of anti-prison justice (I will return to this later). In order for these data to be interpreted subtly, it must be linked to the evolution in the number of placements in non-penitentiary rehabilitation centers. While the total number of placements rose from 4722 in 2004 to 7147 in 2010, before falling to 5703 in 2016, the number of placements in centers with the highest level of constraint increased continuously in the same period: as a result of the law of 2002, the number of placements in closed educational centers rose from 195 in 2004 to 1431 in 2014 (Figure 2). In 2016, over 25 per cent of placements were served in closed educational centers, and over 40 per cent in closed or semi-closed educational centers.

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Figure 1.

Number of minors incarcerated each year (flow data, 1994–2014).

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Figure 2.

Number of minors placed in residential centers each year (flow data, 2004–2016).

Are these changes a response to an evolution in juvenile delinquency? In the 1990s and 2000s, whereas self-reported delinquency surveys reported a decline in the various forms of juvenile violence (Mucchielli, 2013), the number of minors arraigned by the police and the gendarmerie increased steadily. This increase was mainly due to the criminalization of previously unpunished acts following a major reform of the Penal Code in 1992. It was particularly marked during the 1990s in a context of the growing politicization of the issue of juvenile delinquency, linked to that of ‘urban violence’ (Aubusson de Cavarlay, 1999): while it rose from 82,000 in 1977 to 98,000 in 1992 (+20.4%), the number of ‘arraigned’ minors increased by 79 per cent between 1992 and 2001, reaching 177,000 in 2001. Since the early 2000s, this number has continued to increase, albeit at a slower pace: in 2013, there were 234,000 minors arraigned, making for an increase of 25 per cent since 2001. This evolution mainly concerned minor offenses, reflecting changes in police practices more than youth behavior. Its primary consequence has been an unprecedented increase in the use of so-called ‘alternatives to prosecution procedures’, that is, a set of quick penalties – particularly ‘legal warnings’ – for petty crimes, decided autonomously by the public prosecutor’s office, allowing penalties to be imposed without going to juvenile court.

To summarize: over the past 20 years, the French juvenile justice system has widened the criminal net by creating new incriminations and systematizing its responses to offenses, including the most harmless – reflecting the increasing importance placed on judicial symbolism in a context in which juvenile court judges are regularly accused of ‘laxness’. This first evolution has paralleled a reinforcement of control over youths with the most deeply rooted delinquent careers. For them, imprisonment is no longer the only solution: the relative decrease in the incarceration of minors since 2000 has been accompanied by an increase in placements in semi-closed and especially in closed educational centers, which are non-penitentiary and are not counted in incarceration figures, though they are based on a high degree of constraint. Although these centers could not be compared to prisons, the juveniles there are subject to increased supervision, as well as a range of obligations that, if not respected, can lead to incarceration if a judge so decides. This way of operating reflects the importance attributed to ‘probationary’ logic, which is also playing a greater role in open custody centers (Sallée, 2016: 131–139), in the context of an increasing optimization of risk management that reserves prison for the minority of youths considered to be most ‘at risk’ of recidivism, or more broadly – in the absence of standardized recidivism-risk assessment tools in France – of ‘disturbing’ public order. More generally, this new ‘continuum of control’ (Feeley and Simon, 1992: 461), which I also described as a ‘continuum of constraint’ (Sallée, 2016: 201), represents a more general process of ‘carceralization’ of rehabilitative action, through which prison, by means of the incarceration threat hanging over the heads of the youths, spreads its influence beyond its own walls (Sallée, 2017). These observations lead me to advance the idea that the greatest change through these transformations has been not so much in the level of incarceration, but more in the meaning attributed to it – and to all forms of penal constraint by extension. However, to fully flesh out this argument, I need to review some of the biggest changes that took place in the French juvenile justice system from the 1960s to the 1980s.

When the meaning of incarceration changes

In France, 1960s were marked by the flourishing of a justice of protection. This legally translated into the enactment of an order in December 1958, offering juvenile court judges and the PJJ a monopoly over handling not only juvenile delinquents, but also juveniles ‘in danger’ whose cases fell under rehabilitation assistance: an ‘infraction’ was then considered ‘a symptom’ that, ‘as the human and social sciences teach us […], is not always indicative of greater disturbances in the life of the delinquent than in that of the vulnerable minor’, according to a circular published by the PJJ administration in 1975. ⁴ One effect of this order was that it confirmed the basing of juvenile justice on a ‘paternalist’ model that was centered less on respect for laws and legal procedures than on the authority of the judge, who was responsible for seeing to the ‘child’s interest’ and his ‘proper rehabilitation’ (Garapon, 1990). Judicial data from the time show that this change, concomitant with the promotion of an ‘open custody’ model, was paradoxically accompanied by an increase in recourse to detention measures (Bailleau, 1985). According to a former judge who was worried by this trend, these measures were mainly used by judges to ‘appease’ open custody staff who felt overwhelmed by certain juveniles regarded as the most ‘difficult’ (Martaguet, 1985). Particularly concentrated on the oldest minors, this trend sharpened in the mid-1970s insofar as the effects of the economic crisis made it difficult for most marginalized youths to put delinquency behind them. In the mid-1980s, these observations caused many influential commentators on juvenile justice to fear that its initial ambition was being undermined: Henri Michard (1985), the first director of the PJJ’s training and research center, wrote in 1985 that ‘this development, whose causes are complex, runs absolutely counter to the spirit of the order. One could even say that the current situation is borderline illegal’ (p. 19). The PJJ administration believed that it was the prison administration’s responsibility to take care of these youths, as shown by a circular published in 1980:

The crisis could lead […], if we are not careful, to a call to confine juveniles in establishments that will try to keep the rehabilitation label while taking on a mission of order and public security. […] As soon as they lead to confinement, notions of security and public order pollute the rehabilitation process and make it ineffective. […] It is the Prison Administration’s responsibility to respond to these repressive demands. No satisfactory solution can come out of a confusion between the vocabulary of rehabilitation and repression. It makes rehabilitation uncertain and multiplies infringements of freedom. ⁵

In this context, changes to French juvenile justice over the past 20 years should be understood as the result of a thorough reconfiguration of the legitimate field of rehabilitative action. By very controversially provoking the extension of rehabilitation into spaces that were long foreign to it, this reconfiguration completely changed its meaning: incarceration itself is now part of a new model of rehabilitation under constraint. When a youth is incarcerated, the main task of educators is to ensure the continuity of his or her rehabilitation process, particularly by working with these youths to help them understand the reasons for their imprisonment and the conditions of their release. This task, which had been the responsibility of rehabilitation services from outside prisons since 1978, is now internal. In places where security concerns dictate the overall organization of detention, educators now have the possibility of using prison constraints, and the system of punishments on which it is based, to remind youths of their mistakes and put them on the path to responsibilization (Chantraine and Sallée, 2013). Far from being restricted to prisons, this model extends to all rehabilitation practices. As I suggested above, in residential centers as well as in open custody, the supervision of a growing number of youths is framed by a probationary logic, along with the threat of incarceration, which educators can brandish whenever they see that an obligation has not been fulfilled, or when they more subjectively believe that a commitment has not been honored. By confronting youths with their penal obligations, sometimes at the risk of jeopardizing the bond of trust they have built, they hope to contribute to their responsibilization. This now-ubiquitous reference to ‘responsibilization’ did not come out of nowhere: it is the product of the emergence of various theories that have been paving the way for this new rehabilitation philosophy since the early 1980s.

The rights of the child and the responsibility of youths

Supported by influential judges, including Pierre Martaguet, Antoine Garapon and Denis Salas, these stances echoed various sociological ideas that – at the intersection of a Foucauldian conception of governmentality (Donzelot, 1979) and a Bourdieusian perspective on the reproduction of habitus (Verdès-Leroux, 1978) – the ‘arbitrariness’ of a class justice that, in the guise of humanism and rehabilitation, promotes social control of the working classes and their enlistment into the set of dominant norms. These analyses gradually made their way into the training of social workers, and the theme of ‘the rights of the child’ became the key reference in discourse on juvenile justice in the 1980s. Criticizing the ‘connivance’ between judges and social workers, Louis Denis (1996), a former educator who became a regular trainer at the PJJ’s national training and research center, stressed the importance of the presence of a lawyer at rehabilitation assistance hearings as well as at criminal trials:

Parents might have specific details to highlight and be unable to express them without a spokesperson […] because they are handicapped by inadequate cultural and linguistic capital in this type of situation, not to mention the emotional block that any defendant can experience during their trial. (p. 18)

Consequently, the author believes that in order to favor ‘the interest of the child’, this must necessarily proceed through the ‘law’. He calls for ‘a correct application of the law, which could offer our ‘clients’ possibilities for playing a greater role in determining their own fate’ (Denis, 1996: 19).

In the early 1990s, in a context in which rhetoric about the ‘struggle against insecurity’ was increasingly framing public debates on juvenile delinquency, this theme of ‘the right to rights’ nevertheless gave way to new questions about what constitutes the legal–philosophical flipside of rights: the notion of responsibility, especially the specific criminal responsibility applicable to minors (Bailleau et al., 2010). While the repressive actors of the criminal justice system (police, prosecutors) were playing an increasingly prominent role, particularly in local prevention and juvenile delinquency authorities (Aubusson de Cavarlay, 1999), the PJJ’s rehabilitation ambitions were wavering. To defend the validity of a rehabilitative justice system, various actors decided to emphasize the legal complexities of the initial bill, even if it meant upsetting earlier balances by noting the futility of a strict opposition between rehabilitation and repression. Thus, Christine Lazerges – the co-author (with Jean-Pierre Balduyck) of a 1998 parliamentary report on the juvenile justice system (Lazerges and Balduyk, 1998) – insists on the need to remember the place that the 1945 order establishes for the penal responsibility specific to minors (Lazerges, 1995). However, without abandoning the rehabilitation ambition of the juvenile justice system, it was a matter of militating in favor of reduced criminal responsibility for minors who were still incomplete as subjects of law.

A responsibilization psychology

Within the PJJ, emphasis on this conception of responsibility as a process justified the emergence of a new philosophy of ‘responsibilization’ allied with an ‘éducation au pénal’ ⁶ (Youf, 2009). This philosophy, which has been revived with unprecedented intensity over the past 20 years, crystallized in the early 1980s when the first discussions on the subject of reparatory (or restorative) justice were taking shape. Imported from North America, this form of justice emphasized the delinquent’s direct involvement in a vision of ‘reparation’ for harm done, to take account of the loss sustained by society and the victim, but without resorting to incarceration (Bazemore and Walgrave, 1999). The notion of ‘reparation’ was legally institutionalized by a law enacted in January 1993, creating a new ‘penal reparation’ measure (Milburn, 2005). According to a circular published in March 1993, the aim of this measure, through the youth’s commitment to specific community work, was to give impetus to his ‘responsibilization’ by working to instill an understanding of the meaning and consequences of his infraction. To the dismay of many of its initial promoters, the idea of ‘reparation’ then extended beyond this innovative judicial and pedagogical framework. It gradually became the basis for a more general transformation of the rehabilitative philosophy, making it possible to point to the ‘responsibilization’ imperative when justifying the importance of the penal constraint and its associated (threat of) incarceration for the rehabilitative process.

The rehabilitative relevance of the reparation–responsibilization duo was legitimized by reference to various theories, especially those stemming from notions developed by Maryse Vaillant, who joined the PJJ in 1963 as an educator, before studying clinical psychology and psychoanalysis in the 1970s, and later being hired in 1984 as the ‘head of study’ at the PJJ’s national training and research center. As soon as she took up this post, Maryse Vaillant was placed in charge of a study examining the question of reparation, and she soon published a first report. In particular, the report stresses that, in a context in which educators were less interested in the offense committed than in the social, family and psychological ‘situation’ of the youth, ⁷ the theme of reparation was an opportunity to put the offense at the heart of the rehabilitative work, for example through the remorse expressed by the youth, or his/her vision of the victim (Vaillant, 1984). But it was primarily in the late 1990s that she systematized her theories on reparation, which had become important references for PJJ educators. ⁸ Maryse Vaillant’s works concerned the reparatory process as a ‘fair punishment’ lying somewhere ‘between laxness and repression’. Citing the works of psychoanalyst Mélanie Klein, Maryse Vaillant presented this punishment as an opportunity for the transgressing adolescent to ‘make amends’ in order to allay his guilt. Through his confrontation with ‘the world of law’, the adolescent takes an ‘active place […] in the symbolic system of proscriptions and prescriptions […]. He is recognized as being responsible for his acts and capable of answering for them’ (Vaillant, 1999: 20). Here one can perceive the ambiguity that psychoanalysis brings to the term ‘law’, which can be simultaneously understood on two levels: on an empirical level as ‘criminal law’, and on a theoretical level as ‘symbolic law’, understood within a certain type of psychoanalysis as the foundation on which the juvenile, confronted with the principle of ‘the prohibited’, is able to become aware of his responsibility. In the post-Lacanian psychoanalysis of Pierre Legendre – which served as the foundation of the reform of PJJ educator training programs in the 1990s – law is called upon to institute the ‘law of the Father’ (Legendre, 1989): by metaphorically recalling the ‘original prohibition’ (of incest), legal rules make it possible to restrict individual fantasies of ‘omnipotence’. ⁹

Thus legitimized, the rehabilitative theme of ‘responsibilization’ was institutionalized through the publication of the so-called ‘Perdriolle’ circular in February 1999, named after Sylvie Perdriolle, who was then the director of the PJJ. Among other considerations, the circular sought to (re-)establish a distinction between the rehabilitation work conducted in the penal context and the work done within the context of rehabilitation assistance, contrary to the dominant interpretations of the 1960s and 1970s. She promulgated principles that constituted a moral economy founded upon the young delinquent’s need to acknowledge his mistake and ‘work on his offence’ in order to become conscious of ‘boundaries and prohibitions’: ‘far from being opposites, punishment and rehabilitation are two inseparable dimensions of the rehabilitative action undertaken in a penal context’.^10,11

The importance of the ‘crisis’

Manuel Palacio made the idea of a ‘housing crisis’ the starting point for the reforms he helped to implement. A circular released on 30 August 1993 stresses the need to reconsider the ‘pedagogical tools’ proper to residential centers, highlighting the limitations of traditional handling methods ‘when the persistence of unemployment for over three million people and the significant evolution of employment terms are jeopardizing social reintegration based on everyone having a connection to a trade’. According to this circular, it was therefore appropriate to once again consider ‘the question of collective accommodation and the function of the group’, the ultimate objective being to succeed in linking ‘individual rehabilitation plans with training in social and civic relations’.

The economic crisis of the 1970s and the unemployment explosion it caused were therefore at the heart of the arguments that the PJJ offered to explain the problems it encountered in the 1980s and 1990s. ‘We were asked to take care of young people in situations of exclusion in order to reintroduce them, in a better state, into a society whose state of crisis was the source of this exclusion phenomenon’, explained Manuel Palacio on the occasion of a 1995 round table discussion organized by Les cahiers dynamiques, the main journal for PJJ professionals. The view that a shift took place, in which ‘in the space of around ten years […], what used to symbolize successful integration [paid work] became a rare commodity’ (Bailleau, 1990), is shared by the educators who experienced this period (Sallée, 2016: 105). On one hand, they stress the dynamic created by the day-to-day process of searching for employment, particularly in residential structures, and on the other hand they emphasize the ‘void’ generated by the advent of mass unemployment. In this context, from the mid-1990s, the PJJ administration promoted the idea of reinforced supervision for the juvenile delinquents who were considered most ‘difficult’. According to Manuel Palacio, this response made it possible to lend credibility to discourse on ‘the alternative to incarceration’: the PJJ must be able to offer ‘adapted structures’ for that ‘hard core of kids outside their family and not rehabilitated’ who, unable to ‘stick’ to a traditional household, needed to be ‘contained’.

A history of ‘compromise’

This theme of ‘containment’, inspired by psychoanalysis, was developed particularly in the field of psychiatric treatment, more specifically in child psychiatry, with the aim of offering a reassuring setting to suffering patients. Given that the onset of a neurotic or psychotic disorder was interpreted as the result of a psychological regulation defect, it was deemed appropriate to reinforce the institutional environment and intensify the system of relations surrounding the patient, so that he could rely on it to ‘contain’ his unconscious desires. Imported into the field of the legal handling of youths through discussions on ‘adolescence in crisis’ (Jeammet, 1993), these ‘containment’ concepts enabled PJJ managers to respond ‘urgently’ to political calls for a harsher response to juvenile delinquents. This is what led to the creation of the first semi-closed educational centers (CER) in 1996:

When the right wing was elected in 1995, everyone at the PJJ was afraid […]. We found ourselves in an urgent situation because politicians had clearly joined the debate on semi-closed centers. That was the political tone: closed centers, closed centers … And Jacques Toubon [Minister of Justice] had enough intelligence to very explicitly say to us ‘show me something workable and I’ll handle the rest’. And it was clear to us that something workable meant a more containing structure, and that was what the first semi-closed educational centers were. We coped well. (Manuel Palacio, Director of the department of rehabilitation methods and practices within the PJJ administration, 1995–2006)

In 2002, the opening of closed educational centers (CEF) resulted from a similar logic. During the electoral campaign leading up to 2002 presidential election, the proposal to create closed educational centers for juvenile delinquents met with unprecedented political consensus. To the left-wing and right-wing parties, they symbolized the desire for ‘firmness’ that would ensure the ‘security of the French people’. In June 2002, the right-wing party – elected after a second round against the extreme right – announced that the first CEFs would open in September. During the summer of 2002, even before the first CEFs had opened, a legal problem arose when it was pointed out that according to the French constitution, establishments could only be ‘closed’ if they were part of a ‘penitentiary context’ (Thomas, 2006). However, this option was ruled out by the Ministry of Justice, since at the same time there were plans to open new ‘real’ prisons for minors. The few attempts to get the notion of ‘confinement’ abandoned ran up against the ministry’s desire not to compromise one of the flagship promises of the newly elected government. In this unique configuration, a compromise was finally found: the adoption of the concept of ‘legal confinement’. Based on the traditional mechanism of probationary constraint, previously applied to minors very rarely, in principle this type of confinement does not involve any materialized confinement. As the Constitutional Council emphasized in a decision handed down on 29 August 2002:

the designation ‘closed centers’ only conveys the fact that if the minor violates the obligations that are required of him, particularly if leaves the center without authorization, this is liable to lead to his incarceration through revocation [of the probationary placement]. ¹³

This solution also made it possible to solve a rehabilitation puzzle: was it possible to guarantee maximum restraint within spaces that were not prisons? On 12 July 2002, this question was raised in an article published in the French daily newspaper Libération (‘Éduquer, le contraire d’enfermer’), co-written by the director of the department of rehabilitation methods and practices within the PJJ administration: Manuel Palacio. If the authors advocated the introduction of PJJ personnel into prisons for minors in order to bring a more rehabilitative spirit to penitentiary spaces, at the same time they sought to distinguish ‘prison sentence’ from ‘placement’:

A prison sentence translates into the fact that prison will guarantee the true nature of confinement, by means that include physical violence. A placement ‘only’ guarantees a human engagement, which can translate into strong confrontations between adults and youths, so that the youth will stick with the establishment in which he has been placed as much as possible. When youths react with refusal or revolt, this will translate into an escape in the one case, and running away the in other.

Here, the idea of a ‘human commitment’ so that the youth ‘holds on as much as possible’ – leaving open the possibility of ‘confrontations’ and incidents of ‘running away’ – enters into opposition with the penitentiary management of the prison order, whose top priority is to limit internal disturbances and avoid escapes (Sallée, 2017). In Manuel Palacio’s view, the specificity of the confinement ultimately chosen, in the form of ‘legal confinement’, was ultimately an ‘acceptable compromise’, making CEFs, as he put it, residential centers ‘with more supervision’ (Palacio, 2006).

An ‘optimal rehabilitation under supervision’

Initially used as an instrument of rehabilitative action reform, ‘containment’ theories became essential resources for legitimizing new public policies on the handling of delinquency. This politicized use of psychological knowledge appears explicitly in work jointly produced by Michel Botbol, former psychiatric adviser to the PJJ (2008–2011), and Luc-Henry Choquet, current head of the ‘research’ section of the PJJ administration. In an effort to highlight the therapeutic resources that could be offered by a ‘containing’ institutional framework, they propose a return to what they perceive as the ‘creative ambiguity’ between rehabilitation and repression established by juvenile criminal law. Armed with this legal interpretation, they promote the principle of ‘penal rehabilitation measures’ that are liable to support a handling model compatible with ‘the idea of constraint, as well as that of punishment’ (Botbol and Choquet, 2008: 12). They therefore advocate a type of intervention designed to take place as closely as possible to the everyday behavior of the youths (from morning until night), to guarantee an ‘optimal rehabilitation under supervision’ (Botbol and Choquet, 2008: 20) that would be symbolized by the new prisons for minors, as well as by the strengthening of the penal obligations required of youths supervised outside prisons, in both open custody and residential centers.

The idea of ‘institutional constraint’ promoted by these two authors is therefore linked to their normative interpretation of the edict of 2 February 1945. For the recent history of the PJJ, this observation stresses the importance of the controversies surrounding the legal philosophy that underlies the handling of minors in the penal system. In fact, the principle of punishment acquires its legitimacy only on condition of defending the idea of a responsibility specifically connected with minors; at the same time, this is on the sole condition of considering the practical failure to completely assume this responsibility – the minor is considered a still-incomplete subject of law – that constraint can be justified: punishment itself can thus be both considered as a consequence of the penal responsibility of minors, from a legal standpoint, and as an instrument for their responsibilization, from a psychological one. In this sense, we could say that this, psychological and ultimately moral conception of ‘responsibilization’, closely linked to a legal conception of ‘responsability’, constitutes the philosophical raison d’être behind the reconfigurations that have been shaking up juvenile justice over the past 20 years. This renewed rehabilitative philosophy makes it possible to both rhetorically reassert the specificity of the handling of young offenders relative to that of adults, and respond to the proliferating punitive injunctions that, in France as in many other Western countries, are making the most precarious segment of the youth population into a new ‘dangerous class’. ¹⁴