French Offender Treatment StudyIndividualization and due process of the enforcement of sentences: drawing on the French system of “jude de l’application des peines”.
Introduction
In Japan, once a determination of guilt or innocence is handed down, application of a prison sentence is carried out in a penal institution at the direction of the public prosecutor without any further involvement of the judge(s). In other countries, however, there are systems in which a judge continues to be involved in the process of applying punishment. These are referred to as judge of the enforcement of sentences and in France this kind of official is referred to as a “juge de l’application des peines”.
Individualization judges
Judges of the enforcement of sentences were created in 1958, and from the start one of their important duties was the “individualization” of the enforcement of sentences. Today this is carried out in two phases.
One is individualization in the midst of applying a sentence of imprisonment. In concrete terms, judges of the enforcement of sentences can approve measures of relaxing or terminating the confinement of the person being punished, such as half-freedom (the person being punished spends the night in prison but can leave during the day to perform specific activities), outside activity (the person being punished conducts a fixed activity outside of the prison), fixed electronic monitoring (leaving home apart from fixed activity times is prohibited through an electronic monitoring device), release on parole, and permission to leave or stay outside of the prison.
The other is individualization before the enforcement of a sentence of imprisonment. Surprisingly, judge of the enforcement of sentences can approve these kinds of measures to relax or terminate the confinement of a person sentenced to less than two years’ imprisonment before the enforcement of this punishment has even begun. Through this process it is possible for someone to avoid a complete loss of freedom even after being sentenced to imprisonment by the trial court.
In either process, factors such as the professional/educational activities or medical status of the person being punished are considered, and the manner in which punishment is applied is adjusted, or, in other words, “individualized.” This is referred to as “aménagement de peine”.
Due process of the enforcement of sentences
It should be noted that today this kind of process, to use French-style phrasing, is seen as “judiciarisation” or “juridictionalisation.” In other words, this process is not only the prerogative of the judge of the enforcement of sentences, but can also be initiated by a request from the person to be punished themselves. The judge of the application of punishment will then, with the exception of certain measures, hear opposing arguments in an open debate and hand down a decision of granting or withholding permission, with a rationale for the decision also being provided. In such cases, the person receiving punishment can be assisted by a lawyer if necessary. If the person being punished objects to the decision, they are also permitted to appeal it to the sentence enforcement division. This court’s decision, too, can be the object of an appeal for reversal to the court of cassation. With this system, a person being punished can, for example, request parole, state their own views at an inquiry, and lodge an objection to the decision. This can presumably be described as a due process of the enforcement of sentences.
Issues surrounding the individualization and enforcement of sentences in Japan
So what can be said about Japan by looking at the French system?
In recent years, the rate of parole in Japan at one point fell below 50%. It has recently recovered somewhat, but even so more than 40% of inmates are released after serving their full term. What’s more, 30% of those who are paroled have served at least 90% of their sentence. If those having served at least 80% of their sentence are included, this group makes up more than 80% of all parolees, and these percentages are getting higher every year. In recent years, the parole of those serving an indefinite (life) sentence, too, will not even be considered for parole unless they have already been imprisoned for at least thirty years. According to the Japanese Criminal Code (Article 28), parole may be granted after the prisoner has served one third of a definite sentence or after ten years in the case of an indefinite (life) sentence. This suggests there is room for broad individualization in the enforcement of punishment, but in practice this is never utilized. The measures permitted by current law concerning the handling of prisoners, such as trips/stays or working outside of prison, too, are not used very often (there were only 121 trips and 15 stays outside of prison between 2006 and 2016, and as of the end of April, 2016, there had only been 21 prisoners involved in outside work initiatives at 10 agencies.) Furthermore, prisoners can neither make requests for such measures themselves to the local parole board or the head of their penal institution, nor can they appeal a decision once it has been made. It would seem that Japan still has work to do when it comes to individualizing and enforcing a sentence.
What is a desirable approach to the enforcement of sentence?
Responding to the commission of crimes by elderly and disabled people has become a pressing issue in criminal justice in recent years, and various policies have been put in place. These include so-called “entrance support” for people whose imprisonment is not deemed necessary, and “exit support” that provides assistance in leaving prison and reentering society. These can be seen as policies manifested in places where there are problems with the individualization and enforcement of sentence in Japan. The French judge system (and in particular “aménagement de peine”) provides a useful point of reference as an institutional framework for solving these problems.
Of course, it would be difficult to obtain the desired results by directly applying a system from a country with a completely different history and culture in Japan. And it is not only the institutional framework but also the content, that is, what sort of treatment is to be provided and to what end, of the approach that must be given careful consideration (here I think a good point of reference is the Good Lives model – https://www.ritsumeihuman.com/en/essay/essay234/). The task going forward is to clear each of these hurdles and design an enforcement system that both individualizes sentence in a suitable manner and ensures the due processes.
References
- AIZAWA I., (2015), “Le développement historique du juge de l'application des peines en France”, Ryukoku Law Review 48(2), pp. 177-219.
- AIZAWA I., (2016), “Le développement institutionnel du juge de l'application des peines en France(1)”, Ryukoku Law Review 48(3), pp. 243-324.
- AIZAWA I., (2016), “Le développement institutionnel du juge de l'application des peines en France(2)”, Ryukoku Law Review 49(2), pp. 233-283.
