Laurent Lemasson has a doctorate in public law and political science.
The issue of minimum sentences is once again coming to the fore on the political and media scene.
On March 2, a bill, brought by the deputy Horizons Naïma Moutchou and establishing such a device for crimes of violence committed in recidivism against public officials, had been rejected in committee by Renaissance and the MoDem.
Since then, around forty LR deputies have decided to take up the torch and in turn table a bill along the same lines.
The Keeper of the Seals is firmly opposed to minimum sentences, which he considers
"ineffective"
, supported in this by the bulk of the presidential majority and, very likely, by the Nupes if the proposal were to reach the stage of discussion before the 'Assembly.
But what is it exactly and what judgment can we make on this question, a veritable sea serpent of public debate in criminal matters?
A minimum sentence is a minimum custodial sentence that a trial court must pronounce against a person found guilty of a misdemeanor or a crime.
Currently, in fact, the Penal Code only provides for a maximum amount for each category of crime or offence.
If we take, for example, the offense of violence against a person responsible for public authority (PDAP) followed by incapacity for more than eight days, the maximum penalty provided for by the Penal Code is 5 years in prison and 75,000 euros in fine. fine (excluding aggravating circumstances).
This means that the person found guilty of this offense may be given a sentence ranging from 5 years in prison to … zero days in detention.
However, magistrates are generally very attached to the principle of the individualisation of sentences, and they take minimum sentences as a mark of mistrust towards them.
Laurent Lemasson
In practice, as we know, the sentences handed down by the courts are on average much lower than the maximums provided for by the Penal Code.
Thus, the first work of the Observatory of the criminal response confirmed that the offenses committed against the PDAP are punished in a ridiculously weak way by the courts: between 1/6th and 1/7th of the maximum penalties provided for by the legislator and these firm sentences are pronounced only in approximately 50% of the cases.
Exactly what law enforcement has been denouncing for a very long time.
It is this finding that fuels the recurring demand that minimum sentences be introduced.
One of the first measures taken by the first Fillon government was precisely to set up such a system.
Thus, the law of August 10, 2007 provided for minimum sentences for persons convicted of repeat offences.
But the concept of minimum penalty comes into contradiction with the principle of individualization of penalties, a principle of which the Constitutional Council has been the vigilant guardian since a decision of July 2005. In order not to incur the censorship of the Council, the law of august 2007 therefore provided for the possibility for the courts not to apply minimum sentences by giving specific reasons for their decisions.
However, magistrates are generally very attached to the principle of the individualisation of sentences, and they take minimum sentences as a mark of mistrust towards them.
Thus, it has been observed that minimum sentences have only been applied by the courts in around 40% of the cases where they were applicable.
Moreover, they were applied more to short sentences than to long sentences, whereas they were initially intended to apply above all to the most dangerous criminals.
In other words, the device has been largely diverted from its purpose.
The minimum sentences were subsequently abolished by the law of August 15, 2014.
In reality, what motivates opposition to minimum sentences is quite simply dogmatic opposition to the repression of crime.
Laurent Lemasson
It is this experience of minimum sentences between 2007 and 2014 which allows the Minister of Justice to affirm today that these sentences are “ineffective”.
But it is easy to understand how sophisticated this assertion is: to conclude that minimum sentences do not lower the level of delinquency is as relevant as to say that medical treatment does not work when one does not have it. respected the dosage.
In reality, what motivates opposition to minimum sentences is quite simply dogmatic opposition to the repression of crime.
One of the last fundamental beliefs of the left, and of progressivism in general, is indeed that crime has
"
deep social causes" and that, therefore, "repression is ineffective" (unless, it seems , tax evasion or financial crime).
This belief has been denied a hundred times and in a hundred different ways, but it persists nonetheless, inaccessible to both experience and reason.
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Does this mean that the return of minimum sentences would be a good thing?
Yes and no.
The return of minimum sentences could be a good thing if it made it possible, precisely, to question the dogma of the individualization of sentences.
This dogma is based on what can be called the therapeutic conception of punishment: the idea that the penalty must above all serve to "reintegrate" the offender and that it must therefore be adapted to his "personality" by the judge.
Against this disastrous conception, we must return to the idea that penalties are above all retributive and legal: their primary purpose is to punish the criminal at the height of his crime and to deter those who might be tempted to commit it. 'imitate.
They must be adapted to the crime, not to the criminal, and must not be left to the discretion of the judge.
Recent minimum sentencing bills do not address any of these issues.
They do not even call into question the individualisation of sentences.
Laurent Lemasson
Minimum sentences fit perfectly into such a perspective.
Thus, they existed in the old Penal Code –
ante Badinter
– which expressed the sentences in the form of intervals, and not in the form of a maximum as today.
But we must also remember that the penal chain is necessarily as strong as the weakest of its links.
What is the point of increasing the severity of the penalties provided for by the Penal Code if, moreover, the code of criminal procedure continues to allow the unraveling in secret of what has been decided publicly by the court?
What is the use of forcing judges to be more severe if, moreover, prison under-staffing remains so glaring and prevents the reception in prison of those whom the magistrates are supposed to send there?
Recent minimum sentencing bills do not address any of these issues.
They do not even call into question the individualisation of sentences.
In fact, they are just an attempt to resurrect the 2007 device and will therefore not be more effective than it.
It therefore seems, unfortunately, that these proposals are essentially a matter of political posture and aim above all to embarrass the current majority and not to seriously tackle the problem, yet so serious, of delinquency in France.