Knowledge and drug law enforcement in France

Nacer Lalam and Laurent Laniel

 

 

Introduction

Drug law enforcement enjoys an aura of prestige in French policing circles. For several decades, generations of civil servants and others employed in specialized law enforcement units have implemented their share of drug policy without always fully controlling the effects of their intervention and much less its causes. Drug supply reduction by law enforcement has gained a margin of autonomy and tends to grow in scope. In France, as in much of the rest of the world, seizure and arrest statistics play a key role in the “ceremony of drug control” (Manning 2004), now a central component of official discourse about crime and security.

Illicit drug trafficking and the fight against drug supply are a constant source of popular beliefs and simplifications. There is a clear distortion between this perception and the knowledge built up. A historical glance at the availability of illicit drugs on the (local or international) markets suggests two things—the ability of drug traffickers to evade law enforcement barriers; and the permanence of drug supply structures due to a level of inefficiency of law enforcement linked with the division of labour in the official response (police, justice, and customs). One could define the supply reduction measures implemented in the field of drug supply in Europe as judicial and administrative techniques implemented with financial and human resources in order to dry up the production and the distribution of illicit drugs.

This chapter attempts to provide a partial answer to the following question: why don’t drug law enforcement institutions use more of the knowledge available to them in order to improve their practice against drug supply? Our main hypothesis is that one of the foremost concerns of drug enforcement institutions is to maintain and perpetuate the flows of public resources that they receive.

Police and knowledge: discourses and practices

A French police superintendent once justified his reluctance to let scholars and researchers study the police in these words: “researchers don’t have the authority to work on the police but to work for the police.”[1] Law enforcement institutions should view knowledge transformed into recommendation as a useful resource for their work. Yet in France, even in the present context of “new public management,” where measures and indicators meant to improve the efficiency of the public sector have been implemented since the early 2000s, the question remains problematic as far as law enforcement is concerned. Can the practices of law enforcement institutions fighting illicit drugs supply be clearly objectivised?

The Canadian criminologist Jean-Paul Brodeur wrote 25 years ago that “like criminal behaviour, police activity is an object that opposes deliberate resistance to the project of knowing,”[2] but that, unlike crime, police opposition to knowledge could be institutionalized by legislations and rules on the secrecy of operations (Brodeur and Monjardet 2003: 9–10, Brodeur 1984: 9). Brodeur’s assertion has become widely accepted as a fact by policing scholars the world over. His analysis is especially relevant in the field of drug supply reduction. Two decades later, after spending years researching law enforcement organizations in France, Dominique Monjardet asserted that this resistance comprised four components, which he listed, “by successive escalation from the most spontaneous to the most sophisticated,” as:

       a)    A resistance to intrusive outside observation;

      b)     A claim on the monopoly of competence and a corresponding denial that non-professional views may be valid;

      c)    A view that law enforcement matters are so specific that forms of knowledge that emerged out of other fields simply cannot be relevant; and

      d)    A refusal to select and objectivise efficient forms of know-how; (Monjardet 2005: 20 [translated from French]).

Monjardet also asserted that the resistance of law enforcement professionals to “the project of knowing” was stronger in France than in countries such as Britain, Canada and the United States, and he somewhat uncompromisingly went on to qualify French police and gendarmerie forces as opaque and insular organizations (Monjardet 2005: 31). It has further been observed that the opacity characterising law enforcement organizations generally increases as far as some of their activities are concerned, namely criminal investigations, and among those, investigations of “crime with no apparent victims,” especially drug trafficking by organized crime (Jobard 2000).

Some methodological aspects

On the basis of observations made in the field in the mid-1990s, this chapter explores some issues regarding, on the one hand, information and knowledge and, on the other hand, the process by which drug laws are enforced in France. Field observations come from an initial series of precursor studies on drug trafficking in France that were carried out in the 1990s (CNV 1994[3]). At that time, the main concern of public decision-makers was, to put it in the words of some local and national elected officials, “avoiding a drift into organised crime in the housing estates” of France’s largest metropolitan areas (Paris, Lyon, Marseille) as a result of the development of drug trafficking. At that time it was difficult to understand how small-scale drug retailing networks could establish and maintain connections with groups of traffickers upstream in the supply networks of cocaine, heroin and cannabis resin. Initial observations during these early studies made it clear that it was important to understand how drug law enforcement organizations functioned and what role they played, especially because they were the sources of a significant proportion of the information used for the research.

These early studies and subsequent ones (Colombié, Lalam, and Schiray 2001, Colombié, Lalam, and Schiray 2000, Lalam and Schiray 1998, Ben Salem, Lalam, and Schiray, 1995) were based on what their authors called “indirect methods of approach,” which use information obtained from the institutions in charge of preventing and/or suppressing drug trafficking at the local, national, European and international levels. Such methods rely on the forms of knowledge acquired and developed mostly by official organizations specialising on drugs or faced with drugs issues. Police, Gendarmerie and Customs organizations, as well as prosecutors and others in the criminal justice system offer various types of information, including official, published and unpublished, statistical data; specialized files; intra- or inter-institutional confidential reports; judges’ files on tried cases; and interviews with police, gendarmerie and customs officers as well as prosecutors and examining magistrates. It should be noted that the possibility to access such sources varied across time and space (Ben Salem, Lalam, and Schiray 1995). The data produced and published by French police services are restricted to statistics of seizures of illicit drugs and of arrests for use and trafficking offences. The Office central de repression du trafic illicite de stupéfiants (OCRTIS) collects and centralizes all reports of breaches to French drug laws registered by the Police nationale, the Gendarmerie nationale and Customs.

Drug supply reduction and the “new management of security” in France

Illicit drug supply reduction policies at local, regional and international levels face many obstacles due to the density of the legislation, its haphazard implementation and the speed at which social change occurs. The evaluation of the efficiency of public policy in the field of security was introduced relatively recent in France, and as far as drug law enforcement is concerned it is likely to raise questions (Mucchielli 2008). New public management, a growing paradigm in the 1990s,[4] means a public management centred on performance and a better, more efficient use of public resources. It entails a transformation in the financial procedures and methods of human resources management but these are implemented in a context where administrative sub-cultures have not disappeared. In other words, the management by objectives coexists with former practices, and this is especially the case as far as anti-drug trafficking setups are concerned. Furthermore, the three indicators chosen for the ongoing evaluation are number of drug seizures and quantities of drug seized and arrests. The choice of indicators involves dissatisfactions, conflicts of interpretation and bias because of the artificial nature of these tools, and because they are based on data generated by and within the very institutions that they are supposed to help evaluate. Facing the new constraints of transparency, manipulating performance indicators has become a rational strategy in order to avoid sanctions. New public management may well be more a political theory than an administrative doctrine. Is it merely a tool or a social field getting a real autonomy?

More norms, no assessment

One of the particularities of the French justice system is that the judicial investigation of crimes (crimes) and of some serious offences (délits) and misdemeanours (contraventions) is performed by an examining magistrate (juge d’instruction). When the prosecutor (procureur) turns over a case to an examining magistrate, the latter will delegate some of their powers of investigation and coercion, within strict limits and under their direct supervision, to police or gendarmerie officers habilitated to receive such powers.

The adaptability of criminal organizations and drug traffickers to the legislation brings into question the framework of law enforcement interventions. When confronting an ever-changing criminal scene, legislators are often faced with a Scylla and Charybdis situation—rely on obsolete or insufficient laws, or produce too many laws whose implementation will be slow and that will make public action less transparent.

The first problem, “not, enough laws,” refers to those specific situations where charges are difficult or impossible to bring given existing laws. These are not to be confused with the situations where the police lacks resources to bring charges against some suspects. For example, a study of synthetic drug trafficking networks (Colombié, Lalam, and Schiray 2000) has show that some seasoned illicit manufacturers who know the legislation well may slightly modify some of the molecules present in the tablets they make and thereby avoid charges since the chemical compound that they market is not, or not yet, included on the list of banned psychotropic substances. So-called “Spice” products (EMCDDA 2009) and “mephedrone” (EMCDDA and Europol 2010), which are the cause of a recent outcry in Europe, may largely be viewed as the latest results of this basic strategy. Moreover, when a criminal gang has reached a certain level of illegal activity it often hires specialists (lawyers, accountants, etc.) for two purposes—defence, to block attacks from the legal system; and attack, to take economic advantage of legal loopholes. When investigating individual criminals or criminal organizations whose licit activities and investments provide dozens of jobs, magistrates may choose to moderate their zeal for fear of the social cost of more forceful interventions.

The second problem refers to the propensity to produce new laws in reaction to events causing a public outcry following intense media coverage. Passing new legislation theoretically enlarges the field of intervention of magistrates but there is no guarantee that the new laws will be effectively implemented. The “inflation” of both written and case law tends to slow down its implementation, according to magistrates interviewed who said that they used only a fraction of the available laws. Furthermore, circularity, that is, the adaptation of law to reality and of reality to law, involves some inertia, which offenders generally take advantage of. The “arms race” between magistrates and criminals leads to confusion in the absence of an overall evaluation of existing laws and their level of implementation.

In important drug trafficking cases, the judicial system focuses on the drugs in order to materialize the offence, but tends to overlook investigating offenders’ assets and money laundering activities. Reasons for this include a lack of material and human resources (not enough magistrates trained in financial matters), time (money laundering investigations are usually long), and mutual legal assistance between states. Financial investigations are further hampered when traffickers use companies established in off-shore centres. Knowing that pursuing the money laundering ramifications of a drugs case requires time and resources investigating magistrates often will make an implicit calculation of the costs/probable sentence ratio. Only if the elements available to them are solid enough will they attempt to bring money laundering charges. Such costs/benefits analysis is common throughout the judiciary, both implicitly (magistrates) and explicitly (police).

Asymmetry

Observation of the French judiciary suggests that the interventions jointly implemented by examining magistrates and police officers are unbalanced, because police officers enjoy magistrates’ powers by delegation. While usually this cooperation works smoothly, some drugs cases have shown that this is not always the case. The main reason is to be found in police practice, which must often distort procedural rules in order to be able to investigate a case fully. The use of “informants” is symptomatic of this situation, as is the fact that, for reasons pertaining to police work, investigating police officers often hold many pieces of information that they do not wish to share with magistrates. The level of mutual trust that exists between an examining judge and investigating police officers will determine in good measure the outcome of a case. This is especially the case since the geographic mobility of judges is not always welcome by police officers.

Such a situation may be analysed in terms of principal/agent where the magistrate is the principal and the police officer the agent.[5] The latter is supposed to perform different tasks without breaching deontological rules in order to eradicate (or curb) the drugs trade. However, the primacy of the judge-officer couple is put at risk due to the demands from the chain of command. In other words, the trend at present is that police officers are more concerned with pleasing their superiors, so as to promote their career opportunities, than they are with close cooperation with examining judges. Consequences of this situation include, for instance, that spectacular “busts” that attract much media coverage may be preferred to long, painstaking and uncertain investigations. It may be inferred that this problem is due to a contradiction between the rules and laws that preside over judiciary interventions and practice in the field. Judges maximize their objectives when the case is tried rapidly and the investigations are devoid of formal flaws that defence lawyers might exploit. Given the human, material and cognitive resources at their disposal, police officers maximize their own objectives, which essentially revolve around their careers, when they uncover offences implicating several offenders and involving the seizure of drugs, money, weapons and a range of other objects. Moreover, in highly populated urban jurisdictions, especially along the Lille-Paris-Lyon-Marseille corridor, law enforcement is affected by some corruption, although this is difficult to quantify. Police officers are the actors most vulnerable to corruption because they are the closest to the field. For instance, when large amounts of drugs, cash, jewellery, and so on, are seized, some officers may keep a, usually small proportion, for themselves, viewing this implicitly as a bonus rewarding the risk that they have taken.[6] This may lead some judges to distrust the police and impact negatively on the investigations.

This is the background against which judiciary interventions must take place. Because of this background the nature and quality of the information contained in a case file is highly dependent on the degree of trust existing between examining magistrates and police officers.

Information loss, lack of rationalization, and centralisation

As far as experiences of drug law enforcement are concerned, the qualitative knowledge of the professionals involved is rarely compiled, or valorised, or centralized. Once a case has been tried, including all possible appeals, case files are archived and rarely dug up afterwards in order to detect and analyse potential patterns of personal connections, modi operandi, and so on. The only potential link is the criminal record of an individual, which lists offences and associated sentences. Given the mobility of judges, the knowledge accumulated in a specific locale, especially the outlook of local criminal scenes, is rarely transmitted among peers. As a result, much knowledge is lost, decreasing the efficiency of the system. Another well-known flaw is a lack of connections between judges and cases. A judge may not necessarily establish a connection between two cases investigated in two locations where the same individual is involved.

The lack of a means by which examining judges could share their experiences with other judges militates against the emergence of a common culture and highlights the solitary nature of the profession. The timeframe for action is when a case is investigated. But once it has been tried, there is no prospective analysis, for instance concerning the probability of offenders’ reoffending. In conclusion, the memory of examining judges is rarely used or recorded, due to systemic compartmentalization and localization. Faced with the inaccessibility of information on drug supply, especially by forms of organized crime, public authorities resort to an array of legal resources including eavesdropping, controlled deliveries, wiretapping, “undercover” infiltration, and so on.

Finally, it should be noted that there are asymmetries between the memoranda and directives drafted at the justice ministry and their implementation at the local level. Centralization means that information flows are almost always top-down only, so that local specificities are rarely taken into account and that judges see that changes are imposed on them without any explanation as to how they might fit into an overarching purpose. Although examining judges are independent, the information that they hold rarely flows up to the central offices. For instance instructions to improve the fight against money laundering flow from the central offices down to the local ones but in disregard of their practicality, which for instance would require additional specialized personnel and effective training in international financial matters for judges. Similar asymmetries may also be found in the relations between the justice ministry in Paris and prisons everywhere in France. The flows of information from prison managers toward the ministry are given little attention, illustrating the fact that the system works quasi-exclusively on the basis of orders sent down from the centre.

Public security is difficult to analyse due to the silence and compartmentalization prevailing in law enforcement organizations. However, it seems that there has been a decrease in the number of own-initiative investigations within the judicial police in recent years. This type of investigation is characterized by a concentration of human and material resources and carefully designed strategies for action. Successfully dismantling drug supply networks requires performing arrests in flagrante, which produces solid, undeniable evidence that the offenders have committed the offence. When such investigations result in heavy sentences for major traffickers, they may temporarily disrupt the drugs supply system. Police investigations of major traffickers require the concentration of important human and material resources for several months (with high real as well as opportunity costs) but may be unsuccessful due to insufficient evidence. Yet these investigations do produce valuable information that may become exploitable months later. However, this is rarely taken into account by the evaluation exercises performed afterwards. Because they imply long-term observation, these investigations are well suited to assess the degree of adaptability of traffickers acting individually or within criminal organizations.

By pursuing immediate results, drug law enforcement units privilege spectacular operations that involve “busting” a few individuals and carrying out “dry seizures,”[7] but the overall efficiency of such tactics is disputable. This seeming contradiction may be explained by institutional logics, that is, competition between law enforcement organizations, pressure from the chain of command and the central importance of career promotion. Such logics combine to produce an haphazard, contradictory and short-sighted form of public action. To this must be added an increasing “bureaucratization” of police work. Paradoxically, the advantages resulting from the introduction of information technology have been accompanied by increased demands for administrative documents (pre-reports, reports, balance sheets, audits, etc.). Efficiency may also be hampered by possible differences in the methodologies used by seasoned officers not very keen on further education and younger ones eager to implement the theories learnt at the police academy. In this case, it is difficult to say whether both approaches are complementary or substitutable.

The analysis has shown that it is difficult for judiciary institutions to transform information into solid and updated forms of knowledge. There is a gap between the centralization of the judicial system and the poor rationalization of information management. The result is emergency management characterized by the primacy of the short term and the “dictatorship” of events. Many of the malfunctions observed in public action may be traced back to a weakness in multidimensional and long-term reflexion.

Use and misuse of statistics

Law enforcement statistics are seldom based on scientific grounds but the culture of statistics has long been a central feature of drug law enforcement. Police data are a by-product of police activity formatted according to the formal and informal rules in force in police organizations. Such rules are heterogeneous, changing and may be manipulated in some cases. Although they are highly controversial, law enforcement statistics are used as indicators of the activity of law enforcement departments, which obfuscates qualitative aspects such as knowledge concerning drug trafficking networks and operators or the destination of drug profits.

In a critical study based on numerous interviews with anonymous law enforcement officers and on “état 4001,” the official table listing all offences and crimes recorded in France since 1972, gendarmerie officer Jean-Hugues Matelly and sociologist Christian Mouhanna (2007) have listed many of the techniques used within police and gendarmerie forces in order to manipulate statistics. For instance, the authors show how arresting drug users is a means of improving the overall clearance rate of a unit because illegal drug use allows to establish a direct, immediate correspondence between an offence and an offender. For example, by arresting three young males caught in the act of smoking a joint, a French urban police unit on night duty will become able to report, all at the same time, three offences, three remands in custody, and three cases cleared (a 100 percent clearance rate). Many police managers apparently prefer this form of “statistics-friendly” drug law enforcement to long, costly and uncertain investigations on drug trafficking networks, especially when the deadline for handing in a unit’s statistics approaches. Such tactics may be used as a corrective tool that is brought to bear in cases where it appears that end-of-year statistics may not meet start-of-year objectives and need “readjusting.”

Politicians’ demands for quantifiable results and a well-known propensity of law enforcement organizations to request ever more resources against the “drugs scourge” converge to induce an increase in reported drug law offences. When they become public, official law enforcement statistics may bear on budgetary decisions and help police forces obtain more resources. But there are flaws in the system, and the methodology used to produce statistics is not always transparent. Moreover, statistics may be used for political ends by government ministers and opposition leaders alike, and politicians rarely take into account, much less mention, the intricacies of variable interdependence. It may be suggested that law enforcement statistics on illicit drugs reflect in good measure institutional needs and circumstances.

By way of conclusion

In France the police reluctance to the project of knowing appears as a consequence of state centralization and powerful corporatism. The idea is that police knowledge is wholly empirical and the fruit of experience, and therefore that it cannot be obtained by one who is not a police officer. Studies of police work are felt as impertinent unless they are performed by policemen. This idea is still very much a feature of police corporatism in France, and it tends to disqualify in principle any external research on the police as an institution, turning the latter into a type of “black box.”

Law enforcement organizations are quick to classify data regarding their knowledge as confidential, apparently for fear of potential damages to their reputation. Yet it is probable that if researchers were allowed to study how law enforcement carries out its drug supply reduction missions, these would gradually become more efficient. Instead, it would seem that demands for accountability, efficiency, and legitimacy in purpose continue to be met by an abundance of discourse. Public policy analysis would benefit from exploring what remains of the social effects of political decisions once bureaucracies such as drug law enforcement organizations have absorbed them and partly drained them of their initial intent.

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