samedi 8 décembre 2012

France/US/UK justice system similarities and differences part one

Talking about differences in the justice system between France, USA and England would take several posts because, basically, they're so different. French system is based on Ancient Roma's one, England had developed its own barely from scratch ("common law") and US's one had been derived from UK's one but diverged and even copied some French choices. Kind of complicated. French people hardly know the US justice system (mostly based on US series like Ally Mc Beal and DSK/Sofitel case coverage by french media) and do not understand it. At all. But the common impression in France is that it's a justice that is kind for the rich, hard for the poor. May not be wrong. Is that so different in France ? I'm not sure. At all. So let's discuss few topics here. Other posts will follow on the matter.

France : no Habeas Corpus, low civil rights, third-world suspects treatment

Habeas Corpus had been developed in England. The "creation" took its roots as far as in the XIIth century but has been officialized in 1679. The basis is that no individual should be incarcerated without judgment and should know why he had been arrested. In USA, Habeas Corpus had been adopted since the Constitution. Unfortunately, France did not adopted this basic principle. We have our own lifelines but let's take some examples. When you're arrested in US, you should me mirandized (informed of your rights). In France, this right had been suppressed between 2003 and 2011. If police suspects (with the backup of a judge that's easy to have) you of something (maybe a felony like DUI), you'll be kept in custody for 48 hours. In 2009, there were 900.000 custodies of this kind in France - including 300.000 for driving-related felony) for a population of 65 millions. Most of the time, you'll be kept in a shithole (pardon my french but that's the reality - a prison just being disaffected here in Lyon was built 2 centuries ago. Nice from the outside but never changed inside), a cage with many other folks (and some of them dangerous). No separation between suspected murderers or DUI offenders. A law had been voted in 2011 to reinforce civil rights. Before the law, you had access to a lawyer the first 30 minutes (on 48h) and your lawyer (and yourself) had neither access to the file neither access to the charges you're blamed for. Now, you have the right to have the lawyer all along the custody.

No bucks, no good justice

Our justice is awfully slow because of restricted budget (that's the reason given by Justice labor union and this had been backup by many audits). On 43 European countries, only 6 spent less on justice as a % of GDP (Armenia, Albania,..). The graph on your left gives you the yearly justice budget comparison (not including jails), as percent of GDP, per head. Germany and Portugal data are not available

We spend something like $74 yearly per capita for our justice not including jails or 0,18% of our GDP. That's similar to US spendings ($91/year/head and 0,18% of GDP too) but more than England & Wales ($30/year/head and 0,07% of GDP) although some other studies (perimeter / period problems) say UK is above France for justice spendings.

If you include jails management,, you have :

  • France : $152/year/head and 0.37% of GDP
  • US : $182/year/head and 0.36% of GDP
  • England : $85/year/head and 0.20% of GDP (with previously mentioned calculations problems)
So France and US are very similar ! But we got to set some comparisons with other countries
  • Switzerland : 
    • Justice only : $105/head ($74 in France, $91 in US) ; 0.13% of GDP (0.18% in both France and US)
    • Justice + prison : $ : $177/head ($152 in France, $182 in US, $85 in England) ; 0.23% of GDP (0.37% in France and US ; 0.20% in GDP)
  • Germany : 
    • Justice only : $86/head ($74 in France, $91 in US) ; 0.21% of GDP (0.18% in both France and US)
    • Justice + prison : $ : $124/head ($152 in France, $182 in US, $85 in England) ; 0.30% of GDP (0.37% in France and US ; 0.20% in GDP)
  • Portugal : 
    • Justice only : $42/head ($74 in France, $91 in US) ; 0.19% of GDP (0.18% in both France and US)
    • Justice + prison : $ : $65/head ($152 in France, $182 in US, $85 in England) ; 0.29% of GDP (0.37% in France and US ; 0.20% in GDP
Now, if you take the number of declared crimes related to the overall population, if US were 100, you'd have :

- 253 in UK
- 146 in France
- 99 in Switzerland
- 201 in Germany
- 193 in Portugal

So with those few examples only, you can see that the resources used for justice are quite similar in very different countries. And that the correlation (and moreover causality) is not obvious. It "seems" that putting more money into justice has an outcome of smoothing crime but it's far from evident. 

I've added a picture with declared victims rate in the left side that gives a pretty different view.

Slow motion justice

For a crime trial, between the act himself and the first trial, the average in France should be like 3 to 5 years. And for the appeal (which is automatic on defendant or Public Ministry simple request), add 2 more years. So, on the 65,000 people sleeping in french's jails, you have a lot of them that are simply awaiting for their judgment (while 13% of jail time sentences are never served because of a lack of jail places (people are officially allowed not to serve their time) or will/means to search convicted people). The decision to keep you in jail awaiting for your trial is based on a multi-judges decision assessing dangerosity or fleeing risks. If after 5 years awaiting in your cell, you're declared innocent, a commission will assess damages and pay you some few bucks. Recently, a citizen got $1,000,000 for 10 years procedure and 7 years in jail for a rape he never committed. And it was not a "bad jury decision". This was acknowledged as a (professional) justice fault. Imagine what can get a guy cleared by jury after 2 years of "preventive jail". He can buy himself a lunch, that's all.

Prosecution system : the French neutral judge illusion

Let's take Mr Strauss-Kahn, former IMF director and about to be French president (what chocked the most French people was the perp walk BTW. And also a politician in jail. That's something you never got to see here !). The case is "The People of the State of New York v. Strauss-Kahn". In civil court, as per my understanding, it will be "Diallo vs Strauss-Kahn".To be honest, it did not understand why, in this very case, while Nafissatou Diallo was the plaintiff, the case turned to be "People of NY vs DSK". My knowledge is limited here but I know it's not always the case (Roe vs Wade being one example). Anyway, that would have been done in France. The US system is : District Attorney (DA) for the prosecution and Defense Attorney for the defense. In France, that's a trio. A judge ("juge d'instruction" that you can translate by "case working judge"), supposed to be neutral, has the monopoly of official resources (police, experts) and try to find the truth (guilty or not ?).

In a famous case ("Outreau") that took place in early 2000s, a case was given to a young (30-something) "juge d'instruction". It was a ugly pedophilia case with people allegedly abused their own children, beat them and prostituted them. The so-called neutral judge convinced himself that the accused were guilty and instructed the case to prove this. But a famous french defense attorney (his nickname is "Acquitattor', see the photo of the "beast" at the left ; "beast" is with my utterly respect because he just wrote a book named "Black beast". Black beast also means a person you have fear of) hired his own PI, fought the case like a bull and all defendant were cleared. But those folks spent years in jail, families and reputations were destroyed, jobs lost, and one of the accused killed himself. A total mess. What happened to the judge ? He got a blame and was moved to an auditor position. Not even disbarred.

That shows the French system is far for being perfect. Now, the main reproach being made to the US system by French people is that, in US system, despite the discovery process, if you want to be decently defended, you need some money to hire your own resources (PI, experts). That's true but the advantage of the US system is clarity : the DA is working on the accusation side, the defense attorney on defense. Clear and simple.

Victims, judges and lawyers places

In France and England, judges are appointed by the "Ministry of Justice", depending on political power. Although we're theorized the separation of powers (voting law, executing law, bring justice) three centuries ago, we still don't apply it. We cherish Montesquieu and the other "enlighten", want to bring them to the whole world but are reluctant to apply their lessons to ourselves. The main flaw of this is, quite often, prosecution against politicians (like corruption cases) are buried by so-called independent judges. The US system is at the opposite. Judges and DA are elected which is theoretically very good (separation of power) but can bring bias (political agendas influencing cases).

The victim role is also in question. In France, it used to be next to zero. Victims can asked to be "civil parties" so they'll have access to (part of ) the files. That's all. Well, it's changing. Nicolas Sarkozy claimed he wanted the victim to be at the center of the justice system. It had not been very far (some shrink help) and I think it's a good thing (this project being stalled).

Beyond being pro or anti-death penalty, with my french culture, the fact that victims can assist to the execution makes me uncomfortable. For me, it turns justice into pure and simple vengeance. My feeling is that justice is between the "people" (as a community or a society) and a perpetrator. The victim is part of it but does not intervene (other than as a witness). But that's my feeling, easy to write in cold blood. Would I become a victim tomorrow, seeing my young daughter being raped and murdered, I could easily change my mind.

Finally, the lawyers. In France, we have specialized lawyers (corporate, tax, crime, ...) but they're taking (with their team) the case from A to Z. From the plaint to the plea. That's very different in England where you got to work with a solicitor who works the case. But when it's time to go in front of court, the solicitor can't and must pass on the file to a barrister which is kind on a theater expert (with a Queen's Counsel or "Silk" for the best ones). Well, there are pros and cons although I would be uncomfortable having someone pleading on behalf of me and not having worked my case before. USA began with the England system but quickly switched to french one.

There are a lot of other topics I'd like to discuss :

  • Why "class actions" do not exist in France ? (this is "on the table" for long but big companies are strongly lobbying against) ?
  • Why criminal and civil charges are leading to penalties ridiculously weak in France compared to US ?
  • Why is the appeal automatic (on simple request) in France (the first jury ruling is basically useless in most cases in criminal cases) when you need some grounds in US ? As I said, our justice is very low because there's not enough Ministry of Justice's employees. But with semi-automatic appeal, that's quite understandable
  • Why most of French people are against plea bargaining and why had it been shyly and introduced recently and for minor felonies only ?
  • Why do we need a law for any single aspect of our lives when abortion policy stands on a Supreme Court ruling for almost 40 years ?
  • What is the role of our "constitutional counsel" vs your "Supreme Court"
  • Why can't we have a simple and readable Constitution (I've read the US one but never reached the end of my country's one !) ? and why do we change it all the time (the last major version had been made in 1958)
But that's another stories. And that'll other posts !


Halls of Justice Painted Green
Money Talking
Power Wolves Beset Your Door
Hear Them Stalking
Soon You'll Please Their Appetite
They Devour
Hammer of Justice Crushes You

Metallica "And justice for all"

3 commentaires:

  1. Speaking to the main differences between the French and US justice systems: The French one is an inquisitorial one (a simple accusation with little or no proof needed)- the accused must defend himself and in most cases, he must prove his innocence... which allows many abuses by people want to do malice to others, or by 'le juge d'instruction' as in Outreau example. The American one is an adversarial one, based on burden of proof (proof beyond a reasonable doubt), or that the accuser must prove, without reasonable doubt, what he is accusing the other of.
    To summarize, in France it is easier to accuse and convict innocent people, while in the US, guilty parties have a better chance of not being convicted. The main difference I feel is that justice in France is more arbitrary, left almost entirely in the hands of judges (beaurocrats) and more prone to abuse.

    1. inquisitorial : I should have use the word !
      Well, the system is been made so the accused should not have to defend himself in a first place : the "juge d'instruction" (neutral judge) is supposed to discard charges if he found evidences are too thin.
      "that justice in France is more arbitrary, left almost entirely in the hands of judges (beaurocrats)" ==> defintly. Some checks & balances but in hands of non-elected judges
      "and more prone to abuse" I don't know if I'd go to that extent. In some areas (provisional time serving, 48h interrogation time, definitly). Now, at the end of the day, is the French system more prone to abuse than US one ? I don't know ... Some cases had been misjudged due to poor lawyer defense (poor defender) and/or judge electoral agenda. Very difficult to compare !

  2. You are incorrect on one main area: in the US Federal System, all judges & prosecutors are given life terms. Also, in many states, they are appointed to long terms of office (some may also be life) and thus are not elected positions, depending on the individual state.