SECURITY AND PRISON BILL: PROBLEMS AND ALTERNATIVES

Translated by Giulia Maffeis

By Nicola Salutari and Emma Zurru

"Have patience... who the hell takes care of those who are last anymore? Rome has the catacombs, and Italy has the catacombs. These are the filthy prisons! These are the prisons where people kill themselves and are killed!" Marco Pannella's desperate cry for help still echoes. Today, he would react with outrage to the annual count of prison suicides, which has already reached 76, including 69 people among inmates and 7 among prison police officers.

The story of 18-year-old Youssef Barsom, who died burned alive between September 5 and 6 in his cell at San Vittore, has once again amplified the issue of prisons, generally overlooked by both media and politics. The latter has responded with overwhelmingly repressive tones to the riots that started during this scorching summer inside penitentiary institutions. The Security Bill (Bill 1660 signed by Piantedosi, Nordio, Crosetto), presented for its first discussion in the Chamber on September 10, introduces new crimes, including the crime of prison revolt and the crime of revolt in CPRs (Repatriation Centers for Migrants).

These crimes will receive to severe penalties, and the bill’s vague wording raises several potential conflicts with Article 25, paragraph 2 of the Constitution, as highlighted by Patrizio Gonnella, a professor of sociology of law at the University of Rome Tre and president of Antigone, an Italian association dedicated to protecting rights within the criminal and penitentiary system, in an article in Il Manifesto.

The article, defining the so-called "principle of legality," states:

"No one can be punished except under a law that was in effect before the act was committed,"

and its two corollaries—the principle of precision and the principle of harmfulness—would be violated by the new legislation.

To clarify, the principle of precision requires the legislator to define criminally relevant acts accurately. The violation could start from the failure to define "revolt" in the bill, or from the excessive width of the definition of "passive resistance," described as obstructing orders to ensure order and security. It remains unclear what violent or non-violent actions would constitute the crime.

The principle of harmfulness excludes the possibility of creating a crime in the absence of harm to a legally protected interest. According to Gonnella, the bill would violate this principle, as it would be impossible to determine the damage caused during a non-violent protest.

Setting aside legal technicalities and constitutional questions, the bill's logical contradiction stands out. It was conceived as a response to stronger and stronger prison riots, caused largely by the immense distress caused by overcrowding and the failure to meet basic human rights and fundamental freedoms. Yet, the bill is proposing the introduction of new criminal offences, which will inflate the overcrowding problem, already among the highest in Europe in Italian prisons. As of August 18, 2024, data from the National Prisoners’ Guarantor indicates an average occupancy rate of 131.06%, with a peak of 220.98% in San Vittore in Milan.

Therefore, to disincentivize prison riots primarily caused by overcrowding, the solution is to increase overcrowding by adding new criminal charges for existing inmates and introducing new crimes that could be replaced by administrative offences or even fines.

One example is the so-called "anti-Gandhi" law, Article 14 of the Security Bill, which provides for up to one month in prison for those who block roads or railways in protest, and six months to two years if the action is involving more people. From a technical standpoint, this provision would also violate an additional constitutional principle, that of subsidiarity (Article 13 of the Constitution, which defines personal freedom as inviolable). This principle holds that imprisonment should only be used when no other means, punitive or otherwise, can effectively protect the legal interest in question from a particular form of harm.

More functional and scientifically based solutions than criminalization have been outlined, focusing on two main approaches. Firstly, contrary to what parliamentary majorities—on both sides—have done over the years, the legal community is emphasising the need for decriminalization, replacing criminal offences with administrative rules or making the incriminated acts legal.

Then, the use of prison as the only deterrent to crime is widely questioned by criminological research, as stated by Roberto Cornelli, Professor of Criminology at the University of Milan, in an article published on May 27, 2024, which supplemented his parliamentary hearing on the bill.

Furthermore, various technical voices advocate for a complete reconsideration of alternatives to prison, such as Giorgio Spangher in Il Dubbio, where he discusses the alternatives to pre-trial detention. He suggests revisiting the introduction of bail, with parameters aligned to substitute penalties, accompanied by house arrest (with or without electronic monitoring) and procedural obligations (reporting and presence requirements).

Let's focus specifically on the composition of the prison population: it's revealed that 34.1% of inmates are drug dealers, according to the White Paper on Drugs (a report promoted by several associations, including Forum Droghe, Antigone, Associazione Luca Coscioni, and Arci). Members of the Radical Party suggest proceeding with the legalization of all drugs, methodically and carefully, to empty the prisons of those convicted under Article 73 of the Consolidated Law on Drugs(production, trafficking, and illicit possession of drugs). Some experiments with legalization have already been held in Portugal (2001) and in the American state of Oregon (2020), showing positive results in other areas, such as reducing overdose deaths and HIV transmission among drug users.

The prison emergency, shortly, must be addressed with scientific methods and public participation. For those who feel uninvolved, I refer to the words of De André in Nella mia Ora di Libertà:

"However much you think you're absolved, you're forever involved."