France’s “Sarah Halimi Law” Won’t Combat Antisemitism

In France, Jewish suffering has become the excuse for a “tough on crime” politics that endangers marginalized groups while doing nothing to protect Jews.

Jacob Hamburger
May 7, 2021
Protesters demonstrate outside the French Embassy in London, April 25th, 2021. Photo: Dominic Lipinski/PA Wire via AP Images

LAST MONTH, THE COUR DE CASSATIONFrance’s highest criminal court—upheld a controversial decision ruling that Kobili Traoré could not stand trial for the death of Sarah Halimi, an Orthodox Jewish retired schoolteacher living in Paris’s 11th Arrondissement. There was never any doubt that Traoré killed Halimi in a chilling attack in 2017: He confessed to breaking into Halimi’s home in the building where they both lived and crushing her skull with a blunt object before throwing her blood-soaked body off a balcony. There was also no question that this was an act of antisemitic violence. Traoré admitted to investigators that he attacked Halimi after seeing the menorah in her apartment on the night of the killing, and neighbors heard Traoré—who is Franco-Malian and of Muslim heritage—shouting “Allahu Akbar” and claiming that he had killed a “sheitan,” an Arabic word meaning demon.

The court nonetheless concluded that Traoré was “penally irresponsible” for killing Halimi based on multiple psychiatric evaluations. Doctors described him as having experienced a “burst of delirium,” which may have been associated with the onset of schizophrenia. In the weeks leading up to the attack, he became convinced that family members and acquaintances were performing black magic on him, and grew so certain that he was being pursued by demons that he sought out an exorcism at a local mosque. Under the French criminal code, a person suffering from “a psychic or neuropsychic disorder having abolished his or her capacity of discernment” cannot be held criminally responsible. Thus, Traoré will not be tried for murder, though he remains confined to a psychiatric institution.

This ruling sparked outrage in France’s Jewish community, prompting tens of thousands of Jews and allies to take to the streets. This anger follows a number of high-profile killings of French Jews over the past two decades—and has been fueled by the government’s hesitation to acknowledge these crimes as antisemitic, most infamously in the 2006 kidnapping, torture, and murder of Ilan Halimi. (Sarah Halimi, known to her loved ones as Lucie Attal but referred to in the press by her Hebrew first name and the surname of her ex-husband, is of no relation to Ilan Halimi.) A 2018 investigation by journalist Noémie Halioua accuses prosecutors of being similarly slow to investigate Sarah Halimi’s death as a hate crime, though the Cour de cassation affirmed that antisemitism was a key factor. Demonstrators’ calls for “Justice for Sarah Halimi” reflect a deep unease among French Jews, many of whom fear that they are no longer safe in France, particularly in areas where Islamist and jihadist ideologies have disturbed relations between Jewish and Muslim neighbors. Underlying the protests is the suspicion that the French state, if not actively antisemitic, does not care enough about Jewish lives to protect them.

Now, these anxieties have acquired an unlikely new focal point: Traoré’s excessive consumption of cannabis, which amounted to as much as 15 joints a day. While both the psychiatrists and the prosecutor involved with the case have insisted that drug use was not the sole basis for finding Traoré “penally irresponsible,” his evaluation did identify it as one factor that contributed to his “delirium,” and the question of drugs has dominated much of the popular understanding of the case. As the Jewish community and thousands of demonstrators have called for “justice,” the government’s primary response has been a proposal to close what it claims is a legal loophole that allowed Traoré to avoid punishment. The “Sarah Halimi Law,” introduced by Justice Minister Éric Dupond-Moretti, would eliminate the “capacity of discernment” defense for anyone who voluntarily consumes drugs or alcohol before committing a crime.

It is fashionable these days to dismiss attempts to “import American ideas” into French political debates, but here it would seem that French President Emmanuel Macron’s government is performing a “tough on crime” stance much like the one that has shaped decades of public policy in the United States. American mass incarceration has been constructed partly through an accumulation of reactive laws intended to honor victims of violence, or to respond to hate crimes and novel ways of killing. Yet when politicians transform specific acts that shock the conscience into criminal punishment statutes, they typically do little for those whom they claim to protect, while strengthening the carceral state and its capacity to harm others. In France today, Jewish suffering has become an excuse for a turn toward a politics of “law and order” that may benefit Macron next year in his likely re-match against far-right challenger Marine Le Pen. This competition to be seen as the “tough on crime” candidate carries dangerous implications for marginalized groups—namely poor and working-class youth of Arab and African descent—while doing nothing to advance the safety of Jews, whose real fears of antisemitism are only obscured by the public debate over criminal procedure.  

THE NARRATIVE that has emerged around the Sarah Halimi case is that French law allows Jews to be killed with impunity, as long as the murderer makes sure to light up a joint first. Macron himself has endorsed this interpretation, opining shortly after the Cour de cassation’s decision that criminals shouldn’t be allowed to escape penalties by “decid[ing] to take intoxicating drugs in order to become ‘crazy.’” In attempting to link questions about substance abuse and mental illness with the problem of antisemitism, commentators have exposed the debate’s barely-hidden subtext: In an essay published in English translation by Tablet, for example, the pop philosopher Bernard-Henri Lévy wrote of “the pressing need to respond to the acts of anti-Semitic and racist killers, even those intoxicated by drugs, or identitarian cult leaders, or Salafist imams.” Lévy’s spurious parallel between intoxication and Islam—which forbids the use of drugs such as alcohol—reinforces a common dog-whistle association in French discourse between extremist ideologies and delinquency or petty crime, a rhetorical mode that stokes anxieties about the place of Islam in French society. In the process, arguments like these foreclose a more nuanced conversation about the role of Islamism in many of the attacks against Jews in recent years—including the attack on Halimi, as Traoré himself visited a mosque with a history of antisemitic teachings before assaulting his neighbor—as well as what might be done to prevent future acts of antisemitism.

Meanwhile, French legal experts have dismissed the notion that the law as currently written gives drug users permission to commit crimes. To qualify for a “capacity of discernment” defense, as Traoré did, requires proof that the accused lost all consciousness of their acts. As law professor Jean-Baptiste Perrier explains, in all but the rarest cases, a person who has consumed drugs such as alcohol or cannabis retains a basic self-awareness, and their intoxication is therefore far more likely to be considered an “aggravating factor” than to count in their favor. Restricting the availability of this defense would thus do little to protect public safety while potentially depriving some defendants of a necessary legal remedy. For this reason, a report by a trans-partisan commission in the French National Assembly has urged against changing the law, for fear of “penalizing mental illness” in cases where drugs or alcohol happen to be involved.

American experience over the past four decades illustrates how knee-jerk reactions to specific acts of violence can have disastrous consequences, even when their aim is to fight hatred. The response to Sarah Halimi’s death bears a striking similarity to a case in point: the woefully misremembered saga of the “Twinkie defense.” As the story goes, in 1979, disgruntled former San Francisco politician Dan White skirted punishment for killing Harvey Milk—America’s first openly gay elected official—by arguing that he was driven temporarily insane by eating too many sugary snacks. In reality, his lawyers claimed that his junk food consumption was merely evidence of a “diminished capacity,” and he was convicted of manslaughter. The case nonetheless fed the perception that California’s laws were too generous to criminal defendants, and helped lead to the passage of a “Victims’ Bill of Rights” law in 1982. Among other things, the law eliminated insanity and diminished capacity defenses, weakened evidentiary protections, and enhanced certain criminal sentences. Along with other draconian laws enacted during the 1980s and 1990s, including the 1994 “three strikes” law passed in response to the murders of two young women, this legislation eventually helped fuel the notorious overcrowding of California’s prison system.

Just as Dupond-Moretti’s current proposal includes no specific measures to protect France’s Jews, specific assistance for LGBT Californians was notably absent from the 1982 law. Instead, law enforcement’s primary response to the assassination of San Francisco’s most prominent gay politician was the city police force’s continued violent repression of gay nightclubs, including direct retaliation for protests against the lenient treatment of White, who had been a cop before entering politics.

While many American politicians have recently renounced the errors of the “tough on crime” decades, Macron and his ministers have just begun to discover the utility of this political register. As Macron prepares to run for reelection, recent polls have him neck-and-neck with Le Pen in the first round of elections next year—and Le Pen has gained significant support among young voters. Macron’s presidency has been marked by intense waves of protest around inequality, unpopular economic policies, and police brutality, as well as high-profile terror attacks and a rocky handling of the Covid-19 pandemic. More than at any point in his term in office, France’s political wunderkind is vulnerable, and the far right is on the offensive. Last month, a group of retired generals published an open letter proclaiming that the current government was unprepared to deal with the threat of “Islamism and the hordes from the banlieue,” referring to residents of poor immigrant neighborhoods, and calling for the military to start a “civil war” to protect the nation. The move seemed calculated to boost Le Pen, who cheered the generals on. 

Macron is responding by seeking to assure right-leaning voters that he is capable of assuaging their anxieties around law and order. To this effect, his government has been hard at work matching or even exceeding Le Pen’s rhetoric on issues like crime and terrorism, which are often linked in political discourse around the banlieues and their residents. Last summer, Macron’s allies introduced legislation that increases police powers to surveil and repress protest. In many cases, the policies put forward as anti-crime or anti-terrorism in fact target French Muslims or the poor. Currently, the legislature is finalizing a bill to combat the ill-defined notion of “separatism”—the accusation thrown at Muslims who don’t fully assimilate into the country’s secular mainstream—by imposing such measures as a ban on professional athletes wearing headscarves, a proscription against the display of foreign flags at wedding ceremonies, and the suspension of welfare payments to parents whose children repeatedly miss school. And even before the Sarah Halimi affair, despite campaigning in 2017 on softer policies, Macron endorsed a “zero tolerance” approach to recreational drugs, including cannabis.

This turn toward “law and order” politics risks exacerbating the injustices of France’s carceral system. French police and prisons fall far short of the brutality and sheer size of their American counterparts, but the country’s criminal punishment system nonetheless predominantly affects poor African and Arab neighborhoods. For example, young people of color are disproportionately stopped for random police searches, for which the enforcement of drug laws can serve as both a pretext and a justification. And while official statistics are hard to come by, people of Muslim descent are overrepresented in French prisons. The push for a “Sarah Halimi Law” must be understood within this political context. Macron and Dupond-Moretti’s proposal aims to hand more power to the criminal punishment system, increasing its capacity to harm France’s most marginalized groups. While the measure might seem modest on its own, as part of a broader push toward carceral solutions, it contributes to the country’s turn down a dangerous path.

Crucially, the government has offered nothing that will protect France’s Jewish community, except perhaps a fleeting feeling that something has been done to respond to the anger over the Cour de cassation’s decision. The unsettling reality is that in a case like Sarah Halimi’s, which has come to symbolize the collective pain of France’s Jewish community, no single outcome in court, nor any simple reform to the criminal code, can hope to provide justice. Politicians’ promise of punishment, whether for Traoré or others like him, is no substitute for addressing the roots of antisemitism. This can only begin with Jews themselves seeking dialogue with their Muslim neighbors about their shared insecurities in contemporary France, and mobilizing for policies that can make both groups safer. 

France’s preeminent progressive rabbi Delphine Horvilleur—who has done much to encourage this kind of dialogue—remarked in a recent interview that the ubiquitous media discussion of “penal irresponsibility” ought to compel all of us, in societies that produce antisemitism and other forms of violent hatred, “to ask ourselves about the meaning of responsibility.” A system for imposing punishment will not help us answer this question. Advocates for abolishing these systems teach us, as Mariame Kaba writes in her book We Do This ‘Til We Free Us, that criminal punishment “allows us to avoid our own responsibilit[y] to hold each other accountable, instead delegating it to a third party.” For Jews in France, in the United States, and around the world, the difficult work of accepting this responsibility begins with rejecting the notion that the struggle against antisemitism requires the punishment of others.

Jacob Hamburger has written about politics in France and the US for various news outlets as well as Tocqueville 21, where he is a founding editor. He is also a practicing immigration lawyer based in Chicago.