The paper first briefly addresses the Chilean situation with regard to the Covid-19 pandemic and explains some of the measures that the criminal justice system has taken during this period, focusing on an analysis of the recently approved law on pardon. In this context, it reports on the interesting ruling by the Constitutional Court that rejected an injunction of unconstitutionality submitted by a group of congressmen who claimed that the mentioned law violated equality before the law, as well as life and health of a group of prisoners, all of whom had been convicted of serious crimes against humanity, a group that the pardon law expressly excludes
More than forty years after the prison reform, the underlying constitutional humanism thereof seems to be overcome by a prison-centric involution, where legal punitive-symbolic measures aims to ‘entrench’ the prison system. Through art. 4-bis of the Prison Law, several automatic effects based on presumptions almost absolute provide for a default harsh imprisonment. The Constitutional Court case law, in turn, tried to make the prison system consistent with the Constitution, starting to overcome the judicial approach grounded on imperative rules, where only the lawmaker is entitled to struck a deal among the interests at stake, limiting the judicial review. In the said pattern, the recent Prison Reform had the aim to overcome the strict system of foreclosure to rehabilitation, avoiding absolute presumptions and giving back to the Judge overseeing sentences the power to taylor the treatment on each prisoner. The valuable preparatory and drafting work started by the States general and later included in the so-called Giostra project, however, was eventually overturned by the umpteenth populist drifting, that stopped the reduction of the cases limiting re-education
This paper starts taking note of the contradiction in which imprisonment nowadays is. On the one side, it can claim foundations in science and rationality, which made it an apparently indispensable tool; on the other side, nowadays there is clear evidence of a deep crisis in many respects, humanitarian, ideological and of efficiency. Therefore, in this moment, we are facing a turning point in the Italian policy on crime. The guidelines under which the punitive system may evolve in the future match distinct, but not necessarily alternative, cultural preconditions. There are three conceivable guidelines for the reform: firstly, that of the alternative measures in prison; secondly, that of the measures alternative to imprisonment; finally, the restorative justice. Each of these will be examined in respect of the imprisonment "monoculture".
The present essay analyzes the legal and historical evolution of prison: first, a tool designed to ensure that the defendant be present at trial and that the judgment be executed; then, a place of detention with a punishment aim. The chosen point of view is the experience of Italian “Practicae criminales”: a literary genre of great importance in the modern age. It constitutes a unique proof of the extraordinary melting pot of legislation, scholarly works, case law and practices rooted in common law. Within these “Practicae”, prisons as a detention place for those awaiting a final judgment are studied for the first time; there are guidelines to regulate the delicate relationship between prison officers and detainees, to strike a balance between guarantism and terror; they describe how the places meant to welcome prisoners and their features should be to avoid mistreatments and torture. There are foresighted descriptions of issues that would later attract debates since the Eighteen Century on. Then the prison would start being seen as the ultimate punishment in a civil society that rejected the reliance on the “splendeur des supplices” of the previous centuries. Nevertheless, throughout the centuries prison has maintained those sharp and afflictive features underlined in the “Practicae” (which at the same time tried to control them by balancing humanity and repression). This analysis unavoidably presents the contemporary jurist with pressing questions on prison conditions, recalling echoes of the past to the historians.
Crisis of the Criminal Sanctions System and Perspectives for Reform: a Dialogue between History, Law and Art
The history of the criminal sanction system is complex: there has been a constant intertwining between penal norms, criminological features, procedural developments, theological influences, criminal policies, architectural theories. By referring to three artworks and their ideal symbolism, this essay intends to analyse the path that has led to the overcoming the most cruel and inhuman punishments, progressively affirming the pivotal role of prison, establishing intermediate sanctions, increasing awareness for human rights within the punishment mind-set. Thanks to a dialogue between history, law and art, it aims to reflect both on the present state of the criminal sanction system and on its needs for renovation, starting from the consolidated and yet fragile theoretical foundations.
Eusebi’s considerations on the question of punishment - in the context of Christian thought - highlight the dark side of criminal law: in the light of art. 27 of the Constitution, he proposes a view of punishment as a path, rather than a rigidly counterbalanced retaliation, and points to restorative justice as a model aimed at the rebuilding of social relationships. The link to Christianity opens prospects which go beyond state justice, and raises the issue of the importance of comprehensive understandings for the rule of law to hold.
Imprisonment, due to segregation and its desocialising effects, is a penalty that, in addition to being particularly punitive, is the last legacy of an "exclusionary” concept of criminal law, which is strongly in conflict with the "inclusive” concept of criminal law shaped by the personalist principles sanctioned by modern constitutionalism. The goal to turn this penalty into a last resort can be pursued by making the choice between prison/exclusion and non-prison/inclusion not only based on the seriousness of the offence, but also trying to deal with the social dangerousness thorugh nondetentive measures and greater use of different kinds of probation. In practice, we can distinguish three types of offences. Firstly, serious offences, punished with over 4 years of imprisonment, in respect of which the convict’s social dangerousness is presumed and the sentence should be immediately executed, with a possibility of a suspension only in the final stages in order to apply parole as a probation instrument. Secondly, medium severity offences, punished with imprisonment up to 4 years, with respect to which, even with recidivists, the sentence should be suspended as a probation instrument. Finally, minor offences, punished with main sanctions other than imprisonment, with respect to which the sentence should be suspended in a special preventive function, through intimidation.