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Une Société Daltonienne?: Racial Disparities within the French Criminal Justice System

According to Sophie Body-Gendrot, “France has the largest Muslim and Jewish populations in Europe and a long immigration tradition” and its non-French immigrant population is “significantly overrepresented among criminal suspects in custody and in prison”. Unfortunately, however, the extent of this overrepresentation cannot be adequately described due to a unique complicating variable that makes discussion of racial disparities within the French criminal justice system, and French society in general, more difficult than in many other countries: there are no comprehensive statistics available regarding the racial composition of France, let alone of individuals involved in their criminal justice system.

As discussed by Erik Bleich, unlike many countries in Europe and North America, France uses a ‘color-blind’ model of public policy, meaning “that it targets virtually no policies directly at racial or ethnic groups”. France chooses to avoid ‘race-conscious’ policymaking that explicitly acknowledges the existence of racial disparities and targets certain policies towards bettering the circumstances of marginalized racial/ethnic groups. Opting to combat hate speech and racist violence in its racial policy, “France has proven less interested in and adept at punishing discrimination in jobs, housing, and in provision of goods and services”, especially in comparison to other Western nations, mostly due to its reliance upon its penal code, which has a higher burden of proof than its civil code, to prosecute such offenses.

Vinecia Perkins outlines the historical forces leading up to the adoption of this color-blind policy model, explaining that during the adoption of its current constitution in the 1950s the French government decided to reject the practice of distinguishing people on the basis of race or ethnicity, with this “unease [deriving] from the French government and police conspiring with the Nazis in World War II to deport over 75,000 Jewish people to death camps”. Thus, the preamble of the French Constitution adopted in 1958 outlines the rights of “each human being, without distinction of race, religion or creed”, language that has been interpreted as a ban on race consciousness. Further complicating matters is the fact that, as Perkins explains, France’s “Data Protection Act prohibits both public and private actors from collecting any data pertaining to race, ethnicity, or religion”.

In the context of criminal justice, this means that not only does France lack robust anti-discrimination laws or protections against police discrimination, but it also lacks official data from any stage of its criminal justice system that distinguishes between races and ethnicities. This lack of racial data renders discrimination and racial disparities invisible, blinding the majority-white population of France to the experiences of its non-white population.

An example of such experiences are the practices of “identity verification” (vérification d’identité) and “security pat-downs” (palpation de sécurité). As explained by Human Rights Watch, “Under article 78-2 of the Code of Criminal Procedure, law enforcement officials have the authority to stop anyone to verify their identity”. Combined with the allowance of pat-downs for weapons, these stops are reminiscent of the “stop-and-frisk” tactics used by American law enforcement, with the important difference that identity verification does not require reasonable suspicion. Moreover, while French police regulations state “that these pat-downs should not be performed systematically… In practice, pat-downs and searches of belongings… are systematic”. Additionally, officers are not required to document verification stops, meaning that, in addition to overwhelming barriers to proving discrimination, a citizen wishing to file a complaint has no means of proving that a stop even occurred. Human Rights Watch found that their interviewees strongly suspected a racial component to police discretion in making verification stops. These participants generally found the process to be humiliating, including “the systematic use by the police of the informal, familiar mode of address that is regarded as disrespectful” (i.e. use of the informal tu instead of the formal vous). Based on the sum of their work, “Human Rights Watch takes the view that police use identity checks as a blunt instrument to exert authority” in “poor neighborhoods, where people of immigrant origins represent a significant part of the population”.

A 2009 study by Open Society Justice Institute was “the first to gather the quantitative data necessary to identify and detect patterns of ethnic profiling in France”. Lacking official racial data, impartial monitors were tasked with observing police stops in and around the Gare du Nord and Châtelet-Les Halles rail stations (important transit points in central Paris) and recording the perceived race of the citizens being stopped. With observations conducted “from October 2007 until May 2008, the study generated unique information on 525 distinct police stops carried out by National Police and Customs officers”. Calculating the odds of being stopped for several racial groups and comparing them against the odds of being stopped for Whites, this study found that citizens perceived to be Black (of sub-Saharan African or Caribbean origin) were stopped at rates of disproportionality that ranged from 3.3 to 11.5, with the overall finding that Blacks were approximately 6 times more likely than Whites to be stopped by the police. Arabs (of North African or Maghrebian origin) were stopped at rates of disproportionality that ranged from 1.8 and 14.8, and citizens perceived to be Arab were overall about 7.6 times more likely than Whites to be stopped by the police. Open Society Justice Institute concludes that this “study confirmed that police stops and identity checks in Paris are principally based on the appearance of the person stopped, rather than on their behavior or actions”.

France has a long history of race riots and protests against the police, with Perkins identifying important protests occurring in 1980, 1983, 1990, 2005, and 2017. In November 2020, “Tens of thousands of critics of a proposed security law that would restrict the filming of police officers protested across France”, with this proposal representing yet another obstacle to addressing police discrimination. Human Rights Watch found that while many of the youth they interviewed understood that identity verification is legal, “there is deep resentment over police stops and searches that are experienced as unjustified and humiliating”. Despite the dire need for clarity on racial disparities in the French criminal justice system, it remains impossible to fully assess the extent to which this system discriminates on the basis of race.

As Perkins aptly puts it, color-blind policymaking “exacerbates the problems and barriers to assimilation that ethnic and religious minorities face in France because there is no way to quantify their unique experiences. The ban on ethnic data allows discrimination to hide in the shadows”.

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