50 years since the Prison System Law: A Comparison with the Spanish Reform Model

Translated by Giulia Maffeis

By  Nicola Salutari ed Emma Zurru

2025. marks the fiftieth anniversary of the approval of the Prison System Law (L.O.P), which establishes the rules governing prisons and correctional institutions, their organization, and the execution of deprivation and restriction of liberty measures.

That's not all: this also the year in which, in the first two weeks of January, the number of suicides in prison increased compared to the same period in 2024, 2023, and 2022. In just the first few days, six suicides were reported, along with two additional deaths whose causes are still undetermined.

The crisis in the Italian prison system is well known, as highlighted by the annual number of suicides (90 in 2024) and the overcrowding data: the average prison occupancy rate is at 132.5%, with peaks reaching 225% (Milan San Vittore) and 205% (Brescia Canton Monbello).

What are the legal causes of the prison crisis? To find an answer, it is useful to compare it with the Spanish model, summarized in an article published in L’Ape Ingegnosa. This comparison will focus on the differences between the penal codes and the prison systems of Spain and Italy on specific points.

Italy’s current penal code is the 1930 Rocco Code, a fascist and illiberal code that, by definition, contrasts with the Constitution. Consider the following points:

1. Objective liability models
2. Excessive reliance on custodial sentences

To avoid overly technical legal language, let’s break down these two critical issues.

The Constitution requires that guilt consists of two elements: the event must be foreseeable and avoidable, based on the standard behavior of an “average person.” However, the objective liability framework in the Rocco Code implies that one can be held guilty regardless of intent or foreseeability, even if the act was due to unforeseeable third-party factors. To align these rules with the Constitution, jurisprudence has had to reinterpret them, transforming objective liability into culpable liability, assessed in concrete terms based on foreseeability and avoidability.

This judicial correction is merely a "patch," which does not delete but rather highlights the need for a new codification. We ask our readers: is it better to keep wearing old, patched-up pants, or buy a new pair that fits better?

Regarding the excessive reliance on custodial sentences, let’s look at Spain. Following the adoption of its Constitution in 1978, Spain underwent a comprehensive reform process of its penal code, ending in the enactment of the new Código Penal in 1995. During this reform, all definitive sentences, including the death penalty and life imprisonment, were abolished. In contrast, Italy still retains life imprisonment. Moreover, the maximum prison sentence for individual crimes in Italy can reach up to 30 years (per Article 64 of the penal code), whereas in Spain, sentences range from a minimum of 6 months to a maximum of 20 years, with exceptions for certain aggravated crimes where the limit rises to 30 years.

Another innovation introduced in Spain is the so-called "house arrest," which applies to non-serious offenses and lasts 36 hours every weekend, equivalent to two days of detention from Friday to Sunday. This measure cannot exceed 24 weeks and is chosen for offenses related to sports events or weekend activities (such as drug use, brawls, traffic accidents, etc.). This approach has proven highly effective in mitigating the social and emotional damage caused by imprisonment, particularly concerning employment and family life.

This institution raises an important issue regarding the coexistence of periodic and ordinary detainees, which can be addressed by designating specific facilities for the former, thus preventing interaction with inmates serving standard prison sentences.

The positive impact of these measures is evident in the World Prison Brief data: Spanish prisons have a total capacity of 73,000 places, with 57,000 inmates, resulting in an occupancy rate of 74.1%. As for crime rates, the impact is minimal: according to 2021 ISTAT data, the homicide rate in Spain stands at 0.6%, compared to Italy’s 0.5%. Less harsh sentences do not necessarily lead to increased crime.

Analyzing the Spanish prison system and its differences from Italy’s largely unimplemented L.O.P, the most significant innovation is Spain’s individualized classification system, which forms the core of the entire penitentiary treatment. Unlike a single prison model, Spain employs a diversified approach.

The process of assigning inmates to one of the three levels of the prison system is straightforward: upon arrival, the inmate is placed in an "observation area," and within two months, based on recommendations from the Junta de Tratamiento (Treatment Board) and the Equipo Técnico (Technical Team), the Consejo Directivo (Board of Directors) determines the inmate’s classification and designs a personalized rehabilitation program. The first level (high-security prison) is reserved for extreme cases, such as:

• The nature of the crimes committed
• A history of aggressive or violent behavior
• Membership in armed gangs or terrorist cells
• The introduction of firearms into the prison facility

A significant safeguard is that classification decisions are communicated to the inmate, who has the right to appeal before the Juez de Vigilancia (Surveillance Judge). Additionally, classifications are subject to periodic reviews, at least every six months, by the Junta de Tratamiento, and each reassessment is also open to appeal. This ensures a form of "social mobility" within the prison system, allowing inmates to improve their classification through good conduct and participation in rehabilitation programs. As a result, inmates can access less restrictive detention conditions and earn benefits based on personal merit. The effectiveness of this system is documented in testimonials from inmates, available in full here.

In Italy, the principle of individualized sentencing is affirmed in Article 1, paragraph 2, of the L.O.P. To implement this principle, a technical observation team has been established, and the oversight of rehabilitative jurisdiction has been entrusted to the surveillance judiciary. Beyond ensuring that sentences are tailored to individuals, the law also guarantees inmates the right to a common penitentiary treatment, which may be differentiated based on security concerns.

The issue lies in how differentiation impacts individualized sentencing. Over time, security concerns related to particularly dangerous inmates have led to increasing differentiation in prison conditions. In some cases, these special rules affect not only the inmates' placement but also their rehabilitation process.

To clarify how the admission process takes place: in Italian prisons, the penitentiary institution’s team, under Article 13 of the Prison Law (L.O.P.), is responsible for observing the inmate to identify personality traits, determine any physio-psychological deficiencies, and establish the causes of social maladjustment. The observation period coincides with the duration of the sentence. For each convicted and interned person, guidelines for rehabilitative treatment are formulated, and a corresponding program is drafted, which can be integrated or modified according to emerging needs during the execution of the sentence.

Unlike in Spain, in Italy, judicial complaints to the supervisory judge were only introduced in 2013 and have a limited scope of application: they are available only to detained or interned individuals who have suffered a violation of a fundamental right due to a decision (disciplinary complaint) or as a result of unlawful conduct by the prison administration (judicial complaint for unlawful conduct of the administration).

The necessary interventions in prison matters were highlighted by the General States of Penal Execution, promoted by Minister of Justice Andrea Orlando, launched on May 19, 2015, at the Bollate institute, and concluded on April 19, 2016, in Rebibbia. They represented a path of reflection and in-depth analysis, during which 18 working groups, composed of experts in the penitentiary system, debated and produced reflections and proposals regarding the execution of sentences.

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