DOUBLE PUNISHMENT

A frequent explanation given for the disproportionate number of people with psychosocial
disabilities in French prisons is a 1994 law stating that the court should “take into
account” a mental health condition when imposing a sentence on people whose judgment
was “altered” (but not fully “vitiated”) by a mental health condition (referred to as a
“neuro-psychiatric disorder” in the law) when they committed the offence.
While the intention of this law was clearly that impairment of the state of mind should be
considered a mitigating factor, the law was not specific on what the modification should
be. In practice judges and juries have tended to view defendants with mental health
conditions as more dangerous than those without, and consequently handed down
harsher sentences. If it is the case that people with psychosocial disabilities have been
handed harsher sanctions due to their disability and perceived dangerousness, and not
based on objective criteria applicable to all persons found guilty of committing crimes, this
constitutes discrimination on the basis of disability and is prohibited under international
human rights law.
In August 2014 the law was amended as part of a legislative reform seeking to make
criminal sanctions more individualized and tailored to the defendant’s circumstances. As a
result of this amendment a defendant whose state of mind when they committed the
offence was compromised by a mental health condition now have their sentence reduced
by one third.
Prisoners with psychosocial disabilities have a right to reasonable accommodations – or
appropriate modifications - to address their disability and to access services or support.
But as this report highlights, such accommodations and access are inadequate in many of
France’s prisons. For example the location of some prisons render them difficult to access
for medical staff and prisoners’ relatives. There is a lack of communication between
medical and prison staff in certain facilities. Such problems have been identified by
members of the French parliament and the French inspector of prisons for years, but
successive French governments have so far failed to address them.
Imprisonment by its nature places restrictions on the imprisoned individual’s rights,
including the right to liberty and other rights that flow from that such as privacy and
freedom of movement. However prisoners should not endure suffering that exceeds the
level of hardship inherent in the deprivation of liberty. The European Court of Human
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