Oration by dr. Alessandro Margara (Fiesole, Jan 27, 2011)
We have to quote art. 27, para. 3, of the Italian Constitution, as a fundamental rule on this subject, which establishes that: « Penalties cannot consist of any treatment which is against the sense of humanity and must aim at re-educating the convict ».
The constitutional law was developed based on this principle. We can mention some significant parts of the constitutional sentence no. 343/1987, a summary of the previous sentences on this subject and a foundation for the following ones. After pointing out « the joint crisis of the penalty and the measures based on clemency, which have shown to be inadequate, the former in serving as a single and rigourous tool for general and special prevention, the latter in promoting real evidence of amendment », this sentence goes on stating : « Hence the tendency to create measures which, by imposing measures which limit – but not deprive one of – personal freedom and the preparation of some forms of help, can work at the same time as tools of social control and promotion of re-socialisation ». These are the alternative measures of the penitentiary law.
It is clear that constitutionalisation – that is, the recognition of rules protected by the Constitution, which cannot be modified by an ordinary act – invests the tools necessary for the implementation of the principle set out by this law and the organisation system essential for the tools to operate. This means: constitutionalisation of alternative measures to detention in the execution phase and of the organisation system necessary for making them work. There is, therefore, the recognition of the flexibility of the penal execution: the punishment is not rigorous, but, within the framework of the term of imprisonment, the patterns for executing it can change depending on whether the alternative measures are granted or not. The execution of the term of imprisonment thus becomes a mix of prison and alternative measures, so as to implement the consitutional precept of re-education in a more efficient way.
Within this picture, what is the sense of re-education ? There are expressions such as re-socialisation or social re-integration or rehabilitation, that can be more appropriate to the constitutional principle interpreted, as it has been, by the constitutional law mentioned above. Re-education includes all those prison activities which try to give the individual the notions and skills that the previous life has not supplied or insufficiently supplied: a new education where the previous one has failed. This one acts on the objective level rather than the subjective one, supplying the individual with the resources that he/she was lacking. But the main aspect, yet rigorously objective, is the type of intervention mixed with support and control that the alternative measures must provide and that the period of detention should essentially limit itself to prepare by experimenting the construction of a project of integration in the outside world, possibly through permits to leave the prison. It is therefore a question of accompanying the convict in his/her process of social reintegration. This is what the above-mentioned constitutional law explicitly speaks about. Once again, it is this system of penalty execution that the research carried out has shown to be more efficient than imprisonment in order to stop an irregular life and prevent from re-offending, 3-4 times more efficient than the execution in prison. Obviously, this solution returns the individual to his/her social situation, while the mixed type of execution described above accompanies him/her, through monitoring and help, in the accomplishment of a project made to measure.
A final point : not only at the beginning of the American penitentiary boom the re-education prison was considered to be a failure, this is a subject on which we also insist here in Italy. It was clarified that we are talking of something else and that the anxiety on the soul, mentioned by Foucault, is a different thing from this mixed system of prison-alternative measures, which is what we are talking about and in which the detention time can help create the project of social integration that the alternative measures will allow to carry out.
It is clear that today, in Italy, all this is remote and hindered. But another prison is possible and is exactly the one that matches with the model of our Constitution.
Former President of the Michelucci Foundation
and Prison Ombundsman