Punish and Treat : An Empirical Study of the Relationship between Health Care and Criminal Justice (2015-2020)

This collective and multidisciplinary research (REPESO, 2015-2020) involves fifteen researchers specialized in various fields (criminal law, sociology, political science, psychology, and history) and is being financed by the French National Research Agency (ANR). The research involves the theoretical and empirical study of the forms this relationship between health care and criminal justice takes, how it works and how it has changed over the years, and the issues it raises in the context of caring for inmates as well as offenders who are on probation.

We aim to further understanding, from a socio-historical, legal, and sociological perspective, of how the legal framework, goals, targeted populations, and methods have changed, and how the various forms of intersecting criminal-justice and health-care interventions affect the treatment of offenders. It aims therefore to objectify changes in the use of treatment ordered in criminal cases and psychiatric evaluations, as well as the influence of health care issues and expert opinions on judges’ sentencing decisions, and also to identify changes in the practices for treating such individuals and the methods used by professionals to assess the risk of recidivism. Moreover, the research involves an analysis of the relationships between criminal justice and health care professionals, the methods for managing their interdependence, and their acceptance or rejection of government reforms or innovations.

A socio-historical study of the origins of and changes in therapeutic philosophies since the second half of the 19th century will contribute to an understanding of contemporary debates over the issues raised by that relationship. We will examine the past and present goals assigned to the various actions taken by health care professionals in the criminal field, from the perspective of lawmakers as well as of professionals (doctors, judges, probation officers, etc.). We will also examine the legal issues related to the expanded use of expert evaluations and treatment orders on the concepts of liability (not only of the offenders, but also of treatment providers), consent to treatment, doctor-patient confidentiality, and the distinction between punishment and security measures.

To understand the diversity of local arrangements, this quantitative and qualitative research will focus on and produce comparative monographs concerning six locations.

We will start with a statistical analysis of a representative sample of criminal cases (at least 3000) in each location. All felonies tried in the felony courts (Cour d’assises) will be taken into account, but given the much greater volume of misdemeanors handled by the courts, we will examine only three categories of misdemeanors: sexual offenses, domestic abuse, and drug-related offenses. We will then be able to analyze and make distinctions among cases that are not subject to treatment, cases in which alternatives to prosecution that include some form of health care are implemented, and cases in which offenders are ordered to undergo treatment. We aim to objectify the frequency with which expert evaluations are conducted or treatment is ordered in criminal cases, the types of offences that give rise to such treatment, and the criminal and social background of the offenders in question. We will try to determine what variables experts and judges consider to be factors supporting a decision to “prescribe” treatment. For all of these cases, a periodic, longitudinal approach will allow us to conduct the same analysis on case files archived over a series of years, at regular intervals over a relatively long period until today, to understand the relevant variations over time. To meet this objective, four milestone years (2000, 2005, 2010, and 2015) will serve as bases for well-thought-out data entry, at least with regard to misdemeanors. Since the volume of felonies is much lower, we have decided to add 1980 and 1990 in order to collect data on changes in expert evaluations and findings of criminal irresponsibility over a longer period.

This quantitative approach will be backed up by an ethnographical study based on interviews and observations, so as to understand the diversity of local arrangements, expert evaluation practices, and judges’ decision-making practices; the effective implementation of treatment; and the interactions and rapport among the various professionals involved in the medico-legal treatment-supervision of offenders. Based on the initial statistical results, compared with our legal and socio-historical analyses, a series of interviews will be conducted in each location with all of the professionals involved in this process: judges, probation officers, psychiatrists and psychologists, social welfare professionals, etc. These interviews will make it possible to analyze not only the goals and results pursued by lawmakers, but also how professionals perceive and reappropriate these goals and reforms. We will analyze the “tensions” between legal mechanisms and the values, principles, reasons for taking action, and practical meanings defended by the various parties involved. Our examination will focus in particular on information sharing and the protection (or not) of confidentiality both in prison and in alternative sentencing situations. We will analyze the various formal and informal interactions produced by the existing mechanisms to determine how professionals involved view their cooperation and respective roles; how judges, probation officers, and health care professionals relate to each other; and whether these interactions produce complementary relationships, avoidance strategies, or conflicts. We will also study how these professionals organize their various practices and daily or occasional interactions by directly observing them both inside and outside the custodial environment.

We do not intend to conduct parallel research on the various aspects of the topic but to conduct comparative investigations as a group, sharing and comparing information to enrich our conclusions. We will analyze changes in the law, the registers for justifying conduct, and effective practices by combining the methods specific to each of our disciplines. Representatives of our various disciplines will systematically be present when the statistical input form is developed, data is recorded and processed, and interviews and observations are conducted.