Marcello Bortolato and Edoardo Vigna, “Public revenge. The prison in Italy”, Laterza, pp.176. euro 14.
A suggestion for the parliamentarians who in the coming months must approve a new law on life imprisonment after the ultimatum of the Constitutional Court: read the book by Marcello Bortolato, president of the Supervisory Court of Florence, and by Edoardo Vigna, journalist of the Corriere della Evening. The authors, in the 148 pages of a book that is easy to read even for those who do not know anything about the penitentiary system, have the ability to lead us by the hand until we can see prison life from within in its cruelty and unreasonableness; to then indicate the necessary improvements and, with a long look, propose, in the last chapter, some hypotheses to overcome the limits of the prison-center model.
Preliminarily, each of us is required to make an effort to overcome that invisible threshold, which is not that of walls, but that of removing the problem: not to consider prison also our business, in the same way that in someone’s mind detention is not other than the social segregation of the outcasts, removed from our sight and life. But this is not the case and cannot be because, in the first place, “there are no separate destinies” (p. 16). Taking charge of the destinies of those who are “inside” is in the interest of those who are “outside” much more than one can imagine.
In the meantime, apart from the life sentences, all the prisoners have expired their sentence and return to live among us: «What is it that the citizen wants, then? Do you want a person to be worse or better when he gets out of prison than he got in? ” (p. 10). The problem, which is anything but simple, is recidivism, the risk that once you are out, you will go back to a crime; and this does not depend at all on the harshness of the penalties.
Bortolato and Vigna present some data starting from the most dramatic of seven out of ten inmates who return to crime, which become two out of ten when “they have expiated the final part of the sentence in an alternative measure” (p. 15), to collapse to ‘ one percent among those who, in the cell or outside, worked. But “only three out of ten inmates are offered this possibility” due to the profound gap between what is the concrete prison life and the re-educational purpose of the sentence: the result of the resocialization of the prisoner must be built with the penitentiary and re-educational treatment. For example, award permits serve “to gradually prepare the prisoner over the years for definitive exit” (p. 130).
I want to introduce a personal self-critical reflection. In thirty years of anti-mafia militancy, with many colleagues from anti-racket associations, we have contributed, sometimes even directly, to the condemnation of thousands of mafia members with complaints, testimonies, civil action constitutions. After the sentences we considered the game closed with those defendants, completely indifferent to their prison fate, if not to invoke a rigorous application of the hard prison (Article 41 bis of the penitentiary system) to protect our own safety.
But was it right to consider our commitment exhausted in this way? I believe, on the contrary, that precisely in order to make our battles more effective we have an obligation to also deal with what happens in prison and how the re-education paths of the people we have sentenced are carried out. I believe it is possible, without in any way weakening the firmness against all forms of impunity, to take an interest in the rights of prisoners (the penalty takes away personal and movement freedom, “it cannot take away a series of rights that should in any case be guaranteed”, p. 77 ), also of a part of the mafia, to take charge of the paths of resocialization.
The “Constitution starts from the assumption that no one is irrecoverable” (p. 9) and indicates the re-educational purpose of the sentence (more appropriately defined “resocialization” and “social reintegration”, p.20): once the prisoner has served the sentence, he can reintegrate in society without risk to others. The idea of punishment as “public revenge” distances the objective, it “in itself is steeped in violence because it responds to the same logic of the person who committed the crime” (p. 64).
This is the terrain on which one of the decisive games is played also in the fight against the mafias: what is at stake is the otherness of the values of the democratic state, placing oneself on a different level from those who commit crimes, not using the same methods of oppression. The prisoner must be considered as a person with his own dignity: “If the State treats the person in the same way in which the convicted victim treated his victim, it makes himself equal to him and perpetuates the oppression that was the basis of the crime” (p . 13). It is the great lesson of Leonardo Sciascia. In a 1986 article, criticizing the anti-mafia of fascism at the time of Prefect Mori who “had only anesthetized the mafia”, the writer underlined the basic limit: “It took more” to eradicate the mafia, “it took, to put it simplistically, more right: in the sense that Sicilians had to be put in a position to choose, precisely, between law and crime and not between crime and crime “.
In one part of the anti-mafia world, the principle of the absolute irretrievability of the mafia is often theorized. Even if “re-education” only works in a few cases, it is essential to promote it. It is a decisive tool in the comparison of values, to realize a possible strategy of cultural conquest, of reducing the social consensus of the mafias. And then the mafia are not all the same. There is no doubt that it does not work for many mafia bosses at all and the penalty, rightly, “is reduced to its mere retributive function: a pure affliction, a containment for the purpose of social defense” (p. 15).
Certain penalty, the authors explain, does not mean “fixed penalty”, but that “must be predetermined in a knowable way”. The re-educative function means “contrasting neutralization, incapacitation, that is, the attempt, which the prison has as a total institution, to passivize his patient, to neutralize him, to render him incapable” (p. 87).
And so we come to the issue of life imprisonment: the absolute presumption, the fact that a person is considered dangerous as such, contradicts the function of the penalty established in Article 27 of the Constitution. Each must be assessed individually. The European Court of Human Rights which dealt with access to prison benefits, with the sentence of 2019, underlines that “the person’s personality is not frozen at the time of the crime committed” (§ 125); the absolute presumption of dangerousness prevents the prisoner from being able to redeem himself because “it links the dangerousness of the person concerned to the moment in which the crimes were committed, instead of taking into account the reintegration process and any progress made since the sentence” (§ 128).
For its part, the Constitutional Court, while recognizing that punishment can have a retributive and deterrent and social defense function, warns that “none of these functions can ever sacrifice the main one, that is, re-educate” (p. 88). The critical review of the prisoner does not necessarily mean admission of responsibility and collaboration with the justice system: “It means”, the authors explain, “starting from a reflection on what is written in the sentence” (p. 89).
It should be noted that no one will be released from prison following this ruling (and the possible transposition law). The Court provides for the release, by decision of the supervisory judges, only at the end of a rigorous verification procedure “on the external social context” and only after having acquired the opinions of the DDA and DNA and the Provincial Committee for Order and public security (in which representatives of the police force also participate).
It is not true that “regular prison conduct” can be enough, it is essential to demonstrate the absence of links in place with the criminal organization and the impossibility of restoring them. The detainee is one thing at the time of the crime and sentencing, it can be another after decades of expiation in prison: from experience we know that for some of the mafia lifers and for all the mafia bosses the problem does not arise; but for the others one has the duty, once the obstacle of “absolute presumption” has been overcome, to verify case by case.
Starting from the first ruling of the ECHR and then of the Constitutional Court, a lively debate has developed within the anti-mafia world, often with harsh accusations (“150 years of anti-mafia canceled, the bosses rejoice”) or by branding progressive “beautiful souls” and guaranteed as motivated by “unspeakable interests or even just to follow fashion”.
If, as Bortolato explained very clearly, with regard to some releases at the most critical moment of the pandemic, the re-educational principle “basically [..] it defends us from criminal populism “(p. 87),” protecting the rights of prisoners does not mean giving in to crime but is rather the best antidote to fight against it “(p. 140). There are conflicting ideas, but all of them deserve consideration and respect; the anti-mafia can only be plural and there are those who, like me, agree with Gherardo Colombo: “I believe that the ‘jail and that’s it’ system does not guarantee the safety of citizens”.
Sometimes I have the impression that there is a tendency to confuse the means with the end. Detention, however important it may be in fighting the mafias, is however only a means, one of the means. The aim is liberation from the mafia, the end of the mafia, and to achieve this it is essential to prevent the reproduction of the phenomenon: with the sentences the mafia are put in prison, the mafia is not eliminated. To do this, you need to be able to talk also with those young people born and raised in or on the margins of the mafia world, offering them the strength of our otherness, the strength of law.
Bortolato reminds us that there is something that “can do more than bars” (p. 40). It is the identification with the victim: at the moment of the act the guilty person does not think about the victim; the rehabilitation process also passes through this awareness to the point of inducing the prisoner to take action to repair the damage; identification with the victim can “be more effective than the custodial sentence in itself: prison rediscovers its usefulness” (p. 40). And here are the questions posed in the suggestive last chapter of the book: «Can there be an alternative model of justice to criminal justice as we understand it? […] A model that goes beyond the old starting salary canon but also beyond the contemporary re-education one? ” (p. 143). Excluding some few and very serious crimes, mafia, murder, violence against women and children, the scenario of restorative justice opens up, the penalty that serves to repair the offense. It is not a utopia, but an attempt to respond to a need.
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