Crime and Punishment: U.S. and France

By Julien Zeman, Staff Writer

Punishment has existed since the birth of humankind, and though its application has evolved over time, from unregulated bloody revenge feuds to complex criminal prisons, its existence continues to maintain a pivotal role in the conduct and organization of modern societies. Today, legal scholars generally define punishment as “the imposition of something that is intended to be both burdensome and reprobative, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so.”

Although many countries have designed written legal documents, such as the U.S. Constitution and France’s Fifth Republic Constitution, restricting the state from utilizing cruel and inhumane forms of punishment, reservations regarding the efficacy of contemporary punishment have been voiced as high incarceration, and recidivism rates persist. In 2021, for instance, the U.S. incarceration rate reached 639 for every 100,000 people, possessing the highest rate globally. France’s incarceration rate for the same year was 106 for every 100,000 people. Further, according to the most recent and complete data collected, the U.S. recidivism rate on a two-year follow-up was 60 percent in 2005, while in France, the rate for the same follow-up period was 40 percent just one year pri- or. Though high incarceration rates are important considerations in gauging societal failure, this article will focus on recidivism as it provides a more concrete measure of the failure of current punishment principles governing the criminal correctional system.

Recidivism, more generally referred to as repeat offending, is a pervasive issue that continues to trouble both academics and the general populace alike, and though the issue is of no less importance in France, there exists a strikingly large statistical disparity of 20 percent between the two countries. By comparing these two countries, we can attempt to identify the elements which have led the U.S. to have a higher prevalence of recidivism. Once these elements are identified, it may become possible to tackle the more difficult task of isolating possible solutions that may reverse the high recidivism rates that seemingly plague contemporary modern criminal justice systems.

In order to uncover solutions to such a complex issue, it is first necessary to analyze and compare each country’s punishment philosophy. Unsurprisingly, there is a common consensus among France and the U.S. that those who inflict injury upon other members of a community should be punished. However, consensus diverges concerning the justification for punishment and, thus, how it should be implemented. Theories justifying punishment fluctuate with time, and it is, therefore, pertinent to understand what these theories are to comprehend how they impact the prison systems, or other forms of punishment, in their historical and societal contexts.

For the purpose of this article, there are generally two different theories of punishment most frequently advocated for: utilitarianism and retributivism.

Utilitarianism revolves around the principle of deterrence — one should only be punished if it provides the future societal utility of reducing crime.

Utilitarians believe humans are rational beings and will avoid criminal activity if they believe the punishment will outweigh the benefits of committing a criminal act. For instance, a perceived utility of punishment under this theory is the avoidance of private vengeance-based feuds. It is important to note that there exist several sub-theories of utilitarianism, and the forms of deterrence that are stressed vary from general deterrence to the less common theory of rehabilitation utilitarianism, also known as reform utilitarianism. Whereas general deterrence adherents defend punishment on the grounds that it teaches a lesson that dissuades others from committing similar crimes, reform utilitarianists “prefer to use the correctional system to reform the wrongdoer rather than to secure compliance through the fear… of punishment.”

In stark contrast, retributivists’ basic principle is that different subforms of retributivism.

French punishment theory pivots more firmly around utilitarianism as it emphasizes the mitigation of the harmful effects of crime. While those working in the U.S. criminal correctional system claim to preach and punishment is justified when it is deserved. Retributivists believe that humans possess free will. Therefore, if an individual freely chooses to violate society’s rules, it is morally justifiable that they be punished. The severity of such punishment should be proportional to the harm they caused. Retributivists are not concerned with whether or not others will be deterred from committing crimes or reform. Though, again, here it is important to stress that within the retributivist theoretical frame of punishment, there is nuance among the apply utilitarian practices, a plethora of evidence suggests that, in practice, a retributivist form of punishment is more typically employed. The example of capital punishment can be used to illustrate this fact. Whereas France has abolished and prohibited the use of capital punishment, the US continues to utilize it in six states.

In a comprehensive document debunking capital punishment myths, Amnesty International emphasizes, “Evidence from around the world has shown that the death penalty has no unique deterrent effect on crime. Many people have argued that abolishing the death penalty leads to higher crime rates, but studies in the USA and Canada…do not back this up.” Thus, capital punishment more closely serves to fulfill a retributivist approach to punishment. If it were true that the American justice system promoted a strictly utilitarian theory of punishment, the death penalty would, like France, be abolished in all states. Furthermore, the US Department of Justice (DOJ) Office of Justice Programs itself admits that “Sending an individual convicted of a crime to prison isn’t a very effective way to deter crime,” reasoning that “Prisons actually may have the opposite effect: Inmates learn more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment.” Yet, in spite of this admission, an New York University School of Law report suggested nearly 40 percent of the U.S. prison population is behind bars with no compelling public safety reason, illustrating that the U.S. correctional justice system promotes retributivism.

More than just failing to deter crime, the U.S. retributivist philosophy of punishment may actually encourage recidivism. Though factors such as wage, neighborhood and education do contribute to the susceptibility of an ex-convict to recidivate, this is only exacerbated by the application of a retributivist prison culture that emphasizes punitive measures rather than rehabilitation.

Research has affirmed that increasing funding for rehabilitation in the criminal justice system correlatively reduces the propensity for an inmate to recidivate. In 2009, the French Act of 1987 relating to the public prison service was amended to grant inmates the right to “obtain identity papers, to vote, to get married or register in civil unions, and to obtain public assistance funds while incarcerated,” all of which reduce the criminogenic nature of prisons and further eases inmates’ transitions into society.

In comparison, the American justice system is far more restrictive when it comes to issuing prisoner’s rights that will ease their reintegration into society — a difference that manifests itself in the higher rates of recidivism in the U.S. Furthermore, according to the American Psychological Association, “a combination of strict sentencing guidelines, budget shortfalls and a punitive philosophy of corrections has made today’s (U.S.) prisons much more unpleasant — and much less likely to rehabilitate their inhabitants…,” a fact that is made abundantly clear when investigating U.S. correctional prisons’ disturbingly common and harsh use of isolation. The U.S. Bureau of Justice Statistics found that on any given day in 201112, approximately 7.1 percent (approximately 11,200 inmates) of all inmates may be subjected to solitary confinement. This figure does not even take into account people held in solitary confinement within jails, military facilities, immigration detention centers or juvenile justice facilities.

Being subjected to extended periods of solitary isolation has been proven to have significant detrimental effects on inmates’ mental health, as demonstrated by the fact that just over 50 percent of jail and prison inmates suffered from serious “psychological distress.” Christopher Wildeman, a professor of policy analysis and management at Cornell University, asserts that “Being placed in solitary confinement substantially increases the risk of committing more crimes after getting released from prison, and may decrease the probability of employment.” Wildemen found that solitary confinement increased the risk of reconviction within three years by as much as 15 percent. Despite correctional officers justifying the use of solitary confinement on grounds of protecting the inmates and staff, the U.S. Bureau of Justice Statistics reported that, based on their empirical findings, “prisons with higher rates of restrictive housing (also known as solitary confinement) had higher levels of facility disorder….” The term “facility disorder” accounts for fighting within the facility, inmate-officer trust, inmates’ level of concern about being assaulted, reports of inmates yielding weapons, gang activity in the facility and more.

Thus, in addition to negatively impacting recidivist rates, solitary also doesn’t achieve its intended goal.

Though France does utilize solitary confinement as a mode of punishment, its use is far less routinized. A City University of New York research paper examining the French prison system observed that “The pervasive use of isolation in American prisons is disturbing to French correctional officials.” This does not that the French correctional system is without its share of problems. It is readily apparent that a 40 percent recidivist rate suggests a flawed law enforcement approach. Yet, while France has demonstrated a willingness to take concrete steps to mitigate recidivism by applying reform utilitarianism, little progress has been made in the US.

The question that subsequently emerges is thus, what can be done to reduce recidivism? The simple solution is to emphasize rehabilitation over punishment. Research has demonstrated that improving mental health care, establishing educational programs and providing released prisoners with the necessary skills and connections to be successful in the work environment can significantly lower recidivism.

For instance, inmates who participate in educational programs are 43 percentless likely to recidivate, while inmates who are provided the proper support to acquire valuable work skills and are given a job while incarcerated are 24 percent less likely to recidivate. Shifting prisons from punitive to rehabilitative institutions is, of course, easier said than done.

A complete shift in national punishment philosophy is not an easy endeavor. However, as an American Civil Liberties Union research study observed, there is already a general inclination to reform the U.S. justice system given that “71 percent of Americans agree that incarceration is often counterproductive to public safety, since ‘sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems...”’ Conceding that the US populace is ready to make such a change, why has it not occurred? Though there have been efforts in the U.S. to reform prisons into rehabilitative institutions, such instances where concrete change was implemented are scarce. Essential to the reduction of recidivism is considering prison reform indivisible from broader criminal justice reform. Seriously reconciling the presently dominant principles that govern the way punishment is exacted is the first step to abating criminogenic institutions.