Nine Years of Judicial Control

• NCJ Number: 73960
• Journal: Revue de science criminelle et de droit penal compare Issue: 1 Dated: (January - March 1980) Pages: 41-76
• Author(s): I Souleau
• Date Published: 1980
• Length: 36 pages
• Publication Format: Article
• Language: French
• Country: France

Annotation

The effectiveness of judicial control, a supervisory measure substituted in France for preventive detention, is assessed 9 years after introduction of the measure.

Abstract

The intention of the practice is to give the examining judge an opportunity to investigate the socialization of accused offenders by placing them in supervised situations (e.g., hospitals). The negative effects of incarceration are to be avoided in this manner. Assessment of judicial control indicates that the measure has been effective in providing assistance to accused parties and to a lesser degree in permitting observation of their condition, even if the measures of social readaptation are applied without uniformity. Involvement of the examining judge in the judgment process violates the principle of separation of judicial functions, but this fact does not necessarily interfere with the rendering of just decisions. The principal difficulty which has arisen with the measure is that the examining magistrate frequently gives a blank check to the social worker investigating the case. Thus, in the name of the judiciary, health and welfare institutions can exercise control which properly belongs to the judge's domain. If limitations are placed on criminal offenses and penalties, and judges are held hostage by the law and truth, social assistance can expand unrestricted. Expansion of the health and welfare rationale leads to intrusion into the private sphere of individuals being assisted. In this way, the notion of socioeducative administrative action may be substituted for judicial sovereignty. Furthermore, any attempt at social reintegration may prove dangerous if subjects are forced to accept social conformity which alienates them once again. The question remains whether subjects should be allowed to refuse assistance and to exercise their right to be different. Notes are supplied.