Pre-trial detention as it is practiced in France seems to be the paradigm of the “indetermination postulate” that founded the critical legal studies: changes in “words” cannot easily create changes in legal practices. While pre-trial detention has been reformed countless times since the second half of the 20th century, there is little evidence that any of these reforms has had an impact on judicial practices. One possibility is that we are not able to reform the institution because we do not understand its unofficial social functions. Beyond the most pragmatic remand cases, which in practice seem to be much rarer that expected, one can hypothesize that pre-trial detention fills other societal needs: (1) the need for a quick punishment after the fact, thus compensating for the growing length of criminal procedures, (2) the need for a “bargain tool” that the agents of the criminal justice system might present to the suspect in search of a confession and (3) the need for governing social marginality, by replacing objective considerations of seriousness by subjective considerations of dangerousness and social threat, as indicated by social and personal factors. A multi-functional model of pre-trial detention mirrors the current theories of a multi-functional punishment. Not only does a structural analysis of the “the law on the books” show that pre-trial detention is much closer in the legal realm to prison punishment than as suggested by legal theory, an empirical exploration of the “law in practice” suggests that pre-trial detention is commonly consciously or unconsciously understood as a form of punishment in its daily practice, and has – not unlike contemporary punishment – several ambiguous functions.
Available at: http://works.bepress.com/sacharaoult/30/