Leiden Law Blog

Italy: the rise of ‘penal populism’ in a non-punitive country? - Part 1

Italy: the rise of ‘penal populism’ in a non-punitive country? - Part 1

In a contribution that appeared in the edited volume “The New Punitiveness: Trends, Theories, Perspectives” (Routledge, 2005) David Nelken famously referred to Italy as a ‘non-punitive society’. Nelken's considerations were grounded on his observation of the Italian juvenile system and persuasively underlined the existence of widespread leniency towards young offenders. In an attempt to explain the reasons for what could be considered an exception to global trends of ‘western punitiveness’, the British author highlighted a number of specificities embedded within the Italian criminal justice system. He notably emphasised the role played by ‘due process’ safeguards in restraining the expansion of crime-control strategies and stressed the importance of traditional welfarist values – such as social rehabilitation – in the context of penal decision-making and political discourse. While Nelken’s account did not dismiss entirely the influence of certain international trends on both the use and the public perception of criminal justice in Italy, he conceded that – at the time – the drive to punitiveness observed elsewhere (notably in Anglo-American societies) had been tempered and somehow restrained by some of the factors described above.

A non-punitive country?

Throughout the last decade, however, the Italian criminal justice system has undergone a number of major transformations. Starting from the late 2000s, in particular, Italy has witnessed a dramatic increase in its prison population, pushing the country’s prison system to the brink of collapse. Remarkably, the growth of the prison population was not accompanied by a corresponding expansion in the capacity of national prison facilities, thereby causing severe overcrowding and the overall deterioration of prison conditions.

The steep increase in the prison population in the late 2000s could be regarded as the result of a wide array of factors including a ‘tough on crime’ approach vis-à-vis repeat offenders (with a blanket ban on their eligibility for early release), the criminalisation of soft drugs possession and a comprehensive clampdown on irregular migration. Despite these changes, the country’s imprisonment rate remained within the norm, far from the levels of the UK and US and even lower than other (and more comparable) European countries such as France or Spain. In spite of this, the more severe penal policies – carried out under the auspices of the then center-right government– triggered a spectacular rise in the prison population (with an increase of more than 28,000 inmates in less than three years).

The emergence of a new reductionist policy

The dominance of punitive policies, however, proved to be short-lived. A strong human-rights-based narrative gained momentum by the end of the first decade of the 21st century, partly owing to the increased influence of European courts’ case law onto the domestic system. In January 2013, the ECtHR (Torreggiani vs Italy, application no. 45317/09) condemned Italy for inhuman and degrading treatment imposed on inmates as a result of poor detention conditions and overpopulation in several Italian prisons. Significantly, the Court related the serious violations of ECHR’s Article 3 to the ‘chronic dysfunction’ of the Italian prison system and called on national authorities to adopt measures addressing the endemic issue of prison overcrowding. In the Court’s view, the structural and systemic nature of overcrowding within the Italian prison system emerged clearly from the fact that several hundred applications were pending before the Court which concerned the compatibility of prison conditions with Article 3 ECHR.

Unsurprisingly, the Court’s ruling led to a wave of indignation among criminal justice practitioners (lawyers, magistrates and NGOs) and prompted the adoption of some emergency measures to tackle the shortage of space in Italian prisons and improve the living conditions of inmates. While being legally motivated by the obligation to implement the Court’s ruling, these reforms could perhaps be seen as yet another expression of the underlying moderation of Italian penal policies. On the one hand, they sought to establish a set of effective remedies to provide redress in case of prisoner’s rights violations. On the other hand, they aimed at easing prison overcrowding by implementing a large scale reductionist policy.

The outcomes of these reforms proved to be remarkable and led to a significant decrease in the prison population (from 65,701 on 31 January 2012 to 53,623 on 31 January 2014, see here) in less than two years. This impressive performance can be explained, to a large extent, by the reduction in the share of prisoners held in pretrial detention and/or by an effective front door policy, i.e. a decrease in numbers of people being sent to prison (often for short periods of time).

This is somewhat paradoxical as the majority of measures adopted to implement the ECHR’s ruling seemed to place emphasis on achieving a ‘back door’ reductionist policy, by reducing the length of long custodial sentences through a broader application of existing early release schemes. Be that as it may, the ‘recommendations’ made by the Strasbourg judges stressed the need for a larger and more effective use of non-custodial sanctions as a means to reduce the prison population (this being in keeping with the non-binding guidelines of the Council of Europe). In order to promote a broader use of ‘alternatives to imprisonment’, the recent reforms gave more leeway to sentence implementation courts and removed the limitations to early release schemes for certain categories of offenders.  

These much-needed interventions, however, were met with criticisms aired in a disgruntled public opinion and were soon labeled ‘empty-prison’ measures (‘svuota-carceri’) by the press. Arguably, this controversial reaction had something to do with the concern and anxiety spreading among the public in the wake of 2011-2012’s financial and political crisis. Retrospectively, one can argue that the post-Torreggiani legislation taking effect coincided – somewhat paradoxically – with the emergence of public demand for increased security and harsher penalties.

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