Two types of alternatives to custody are in operation in Italy. One that completely diverts offenders from the prison system, as its application is ruled by courts hearing specific cases and dealing with specific defendants. The second type relates to offenders who are already serving a sentence. These alternatives are formally ruled by judges who are in charge of prison supervision. A form of probation belongs to the former type and is known as «affidamento in prova al servizio sociale». It entails supervision by the local social services and can be given to defendants convicted to a maximum of three months sentence. The alternative measure known as «semilibertà» also belongs to the former type, and is granted to offenders who are sentenced up to six months. It consists of day release allowed for work, education, or other rehabilitative activities outside the prison institution (Padovani, 1990).
Both sets of alternatives can also be granted to offenders serving longer custodial sentences. In their case, a «taste» of prison is deemed appropriate before alternative punishments are considered. These can only be granted after their behaviour in prison has been «scientifically observed» for a period of at least a month. Alternatives such as «house arrest», «early release», and «leave awards» belong to the second type. House arrest can be given to those sentenced up to two years of imprisonment, whereas early release (a form of remission) potentially applies to all prisoners, and consists of a 90 days discount for each year served. Leave awards also can potentially be obtained for one or two weeks periods by all prisoners, and are meant to allow offenders some time with their family. The number of days granted to individual prisoners for leave awards must not exceed 45 days per year.
Available data show that about 8,000 offenders were granted house arrest each year during the 1980s, whereas around 6,000 enjoyed day release. More than 30,000 leave permissions were awarded in 1990. This figure does not suggest that almost all the 35,000 Italian prisoners enjoyed leave awards. Rather that 10,000 «deserving» prisoners enjoyed three each in a year (ISTAT, 1991).
Although these figures allow for prudent optimism, the philosophy underpinning alternatives to custody, and the way in which they are implemented, raises serious concerns. A closer look at the prison population shows, in fact, that an equal number of individuals were detained in 1982 as in 1992. About 35,000 offenders were serving a custodial sentence both before and after the two main pieces of legislation which introduced alternatives to custody came to operation. These two pieces of legislation, respectively approved in 1986 and 1991, seemed to be designed with a view to a substantial decarceration process. With hindsight, one could argue that they only represented an emergency response to prison disturbances taking place throughout the 1970s, as they seem to have had a negligible impact on the overall amount of punishment inflicted on offenders. It is true that between 1985 and the late 1 980s the prison population oscillated by some 5-6,000, but the decrease which brought it back to its «normal» level (35,000) is not to be attributed to the impact of alternatives. When, during the course of this period, a rise was observed, the most effective decarceration device proved to be a general amnesty. This typically Italian emergency manoeuvre acts as a decarceration as well as a decriminalisation tool, in that not only does it annul custodial sentences, but it also erases the offences committed off the offenders' record. General amnesties only cover a fixed range of crimes, but are important in decongesting prisons and alleviating the workload of courts. For decades, general amnesties acted as ante-litteram alternatives to custody.
It is not surprising then that alternatives themselves maintain some traits which make them akin to emergency measures such as «judicial pardon». In fact, alternatives to prison took over when general amnesties were less frequently given.
The central principle inspiring and constructing alternatives to custody in Italy, as in England, is therefore connected with the necessity to manage the prison system and to diffuse its internal tensions. As Pavarini (1988) points out, only those alternatives to custody which result in the reduction of the penal system as a whole deserve the recognition as alternatives. He adds, «Nor does the potential availability of legal alternatives to custody boost what is really needed: decriminalisation and depenalisation» (Pavarini, 1988: 50).
In Italy, considerable scepticism is expressed about the possibility of minimizing the use of custody through legal alternatives only. This debate engages students of criminal law and sociologists against the background of a distinctive juridical tradition. It is within the framework of this tradition that alternatives to custody are discussed and their philosophy assessed and criticised.
Three main principles may be singled out which render alternatives to prison necessary and just within the prevailing philosophy of law in Italy. The first refers to the «just deserts» paradigm, whereby not all offences deserve restriction of personal freedom. Even in a strictly retributive logic, not all offences can be legitimately compensated by a quantum of liberty. The debate around prisons which engaged classical reformers can be referred to as a matrix for a contemporary need for diversion. Centuries ago custody was regarded as «excessive», therefore as unjust, for a wide range of offences. In this respect, Cesare Beccaria took on the risk of sounding utopian when, in his effort to be consistent, he claimed that all property offences should only be punished with a fine. Only more «vulgar» demeaners, he implied, need to be met with the impingement on the individual right to freedom (Beccaria, 1970).
Alternatives to custody, therefore, are seen to be primarily just. But, according to another tradition, they also live up to the principle of utility. Here another juridical argument, which is also part of the Enlightened legacy, can be invoked by reformers and advocates of decarceration. Elements of utilitarianism were present in the founding fathers of Italian penology: Beccaria, Cattaneo, Filangieri. The latter, in effect, expressed profound uncertainty as regards the role of prisons in moulding disciplined citizens. Moreover, because in the Italian situation «prison as a factory» was hard]y a realistic feature, even the mundane goal of making prisoners productive while serving a sentence could not be achieved. Prison, it was believed, did not mend the material damage caused by crime; on the contrary, it added to that damage by favouring recidivism.
Finally, arguments in support of alternatives to custody also derive from the Italian positivist tradition. Most positivists were convinced that «therapy» aimed at individual rehabilitation and prevention, that is to say against recidivism, could often be more successful if carried out outside the prison walls (Ferri, 1929; Sighele, 1911; Eilero, 1879). Many positivists would also argue that rehabilitation itself was amongst the most important elements which could guarantee public protection, by them identified as «social defence».
It can be noted that advocates of decarceration in Italy do not see the necessity of mobilizing contemporary critical or abolitionist penology in support of their argument. This perhaps explains why, theoretically, the drive towards alternatives to custody in that country is so widely accepted, though in comparison to England, only a limited number and type of alternatives is actually put into practice. Drawing on traditional penology, most scholars analyse the impact, the necessity and the shortcomings of the recent prison reform with the unspoken notion that custody must be the last resort. The Italian Constitution, in turn, makes it very clear that imprisonment, although a last resort, is not to be intended as punishment per se, nor as a vindictive measure which makes up for the offence committed. Pure retribution is unconstitutional: custody must lead to rehabilitation. If it does not, it has no reason to exist.
According to the current legislation, alternatives can only be granted to prisoners who demonstrate a willingness to participate in the rehabilitation process. A series of rewards and punishments within the main form of punishment administered are imposed which forces a never ending regime of destructive self-control on the inmates. As we will explain later, prisoners know that their behaviour may affect the degree of punishment suffered and the rewards eventually to be gained (Gallo and Ruggiero, 1989; 1991). Alternatives to custody, in other words, hinge on custody as they owe their very existence to the necessity of keeping the prison management smooth, and prison disturbances at bay. It is important to underline that the only authority which is in a position to modulate the intensity of punishment, that is to say to grant awards and inflict supplementary punishments, is the prison administration. All decisions regarding day release, permission to leave, and other non-custodial benefits, although formally sanctioned by the judiciary, are in the last analysis taken by prison governors.
In this context, the first constitutional dilemma with regard to Italian penal law emerges. The supervision of the prison regime, and all decisions regarding the prisoners' treatment, should be the prerogative of the judiciary. The interference of the prison administration in these matters can be regarded as illegitimate, the prison staff being employed by the executive (the Ministero degli Interni). In sum, the way in which alternatives to custody are put into practice violate the constitutional division of powers.
Furthermore, in the Italian context, alternatives to custody have made punishment indeterminate and its intensity discretional. This is at odds with the Enlightenment legacy cherished by many Italian jurists. Critics point out that punishment now confounds the traditional principle of «exchange» (Mosconi, 1988). Its purely retributive function is, in other words, visibly declining. We no longer witness a pure infliction of pain, exchanged with a passive party receiving that quantum of pain. The exchange seems instead to be of an active nature, in that it works in two directions, and entails a production of symbolic behaviour also on the part of the recipient. A collusion takes place which demands the participation of the clients. However, these reciprocity and collusion are, in the Italian context, unconstitutional. As already remarked, benefits and rewards are offered to those who persuade the administration that the process of their re-education is underway, if not wholly accomplished. This adds to the burden of prisoners' self-control. Many inmates are obsessed by the idea of being perennially spied upon, an obsession favoured by the abuse, on the part of the administration, of the phrase «scientific observation of behaviour».
Alternatives to custody have negative repercussions on the offenders to whom they are denied. By virtue of the cooperation required of the inmates, these are led into becoming personalised, as benefits and rewards of the prison reform are selective and strictly granted ad personam. This causes a loss of collective bargaining power among the prison population as a whole, with the result that the living conditions inside the institutions deteriorate. On the other hand, the inmates who are not granted alternative punishments are likely to be regarded as undeserving, and therefore unworthy of any effort to improve their personal condition in custody. Alternatives to custody, in sum, in acting as a sort of «performance related pay or reward» may make custody worse. They may create unequal relationships and can act as a divisive means in an oppressive and psychologically taxing and competitive environment.
The philosophy of alternatives to custody, which is narrowly linked to the philosophy of custody itself, falls short of fundamental notions of justice inscribed in the Constitution. According to the Italian fundamental law, punishment must be informed by a series of principles which correspond to a written set of constitutional guarantees. Punishment is a pre-established penalty in response to an offence. The type and the limits of this penalty must be decided by the judicial authority within the sphere of individual rights (human guarantees), and forms established by a written procedural code. In this respect, three principles should be borne in mind. The first has a most simple formulation: punishment is the judicial consequence of an offence, and the latter is the pre-condition sine qua non of punishment: nulla poena sine crimine. This indicates that punishment is not a «prius» but a «posterius» in relation to an offence, and therefore it does not incorporate any preventative element (Ferrajoli, 1989). The second principle regards the strict legality of punishment. Nulla poena sine lege is the notion conveyed by Article 1 of the Italian Penal Code, whereby nobody can undergo forms of punishment which are not established by law. Therefore, punishment must have exact and discernible limits, and must be definite in its form and intensity. Certainty and equality are also included in this principle. The third principle is summarized by the formula nulla poena sine judicio: punishment must be concretely determined by the jurisdiction, which is also charged with the task of supervising the agencies appointed for its implementation.
The above principles constitute the backcloth against which the debate concerning alternatives to custody currently takes place in Italy. Critics point out that alternatives are inconsistent with the notions of «certainty» and «equality» in that they are tailored on something which is not exactly discernible and scientifically measurable: the behaviour of prisoners and their dangerousness. Moreover, when alternatives are denied on the grounds of prisoners' behaviour, punishment becomes a tool allegedly aimed at pre-empting future offences rather than responding to them (Ferrajoli, op. cit). For example, alternatives to custody are denied to allegedly dangerous prisoners. In these cases, it is expected that the prisoners themselves provide evidence that they are not likely to reoffend. If they fail to do so, they are denied the benefit of non-custodial alternatives. In other words, they are punished with custody before they commit a crime. In this way, prison becomes a «prius» rather than, as said earlier, a «posterius» to crime.
The second principle is also disregarded when alternatives to custody are denied on the basis of the offenders attitude or personality. For example, consider the case of prisoners who do not show a willingness to participate in the rehabilitative process. In such cases, it is the degree of conformity displayed by offenders which determines the amount of pain they suffer, rather than the severity of their law breaking. But no general law of the state dictates that punishment be geared to the degree of conformity shown by offenders. Alternatives to custody, therefore, also fall short of the principle which claims «nulla poena sine lege».
The third principle is shattered by the practical way in which alternatives are implemented, As already mentioned, decisions concerning the amount of pain to be inflicted are not taken by the judicial authority, but by the prison administration. When alternative, non-custodial, forms of punishment are granted, these result from favourable, or extolling, reports sent to appointed magistrates by prison governors. So-called scientific behaviour observation is in fact carried out by untrained prison personnel, and their role ends up outweighing the role of the judiciary. Non-custodial alternatives are in effect ruled by prison governors rather than by judges. This has serious implications. A climate is created whereby individual officers or governors are deemed responsible for the amount of punishment suffered by prisoners. Due to their pivotal role, prison staff are then put under extreme pressure, and are often exposed to bribes, or even to retaliation.
A brief look at the way in which alternatives are granted may also add to the argument. Research findings show that day release and permission to leave are usually awarded to prisoners with a «regular» life-style. Those who are married, for example, have in this regard higher chances than singles, for they are deemed to be more reliable. They are favoured by virtue of their conformist routine and because it is assumed that they bear responsibility for their dependants (Agazzi et al, 1991) Conversely, young single people find it harder to obtain non-custodial treatment in that their conduct is judged irregular and unpredictable. The consequence is that young first-time offenders may be treated worse than consummate recidivists.
Measures such as day release for work are obviously granted to those who «invent» a job for themselves outside. Many prisoners find a convenient employer as a result of their network of relatives and friends. Others are helped in this task by agencies and voluntary organisations. But the more marginalised prisoners, for example those belonging to ethnic minorities, are devoid of social networks and, because they are often illegal immigrants, they are also «invisible» to or uninformed about voluntary organisations and charitable agencies. Therefore, alternatives operate in a two-tier fashion, whereby socially disadvantaged prisoners see their disadvantages perpetuated by the very prison reform which was originally intented to favour them (Olgiati, 1991).
This and other discriminatory elements which are incorporated in alternatives to custody are the target of the Italian reform movement. Reformists argue that punishment displays a variable content, it is indeterminate, it is not based on legally assessed facts but on discretion. This is deemed to be unacceptable in a country where the scientific determination of punishment is an undisputed part of the judicial tradition. In order to fit and be consistent with Italian law and expectations, alternatives should not be discretional, but, e prison sentences, be granted on the basis of objective judicial criteria. Alternatives should be mandatory, determined by the judiciary and withdrawn from the influence of the executive. Only mandatory alternatives can be consistent with the process of decarceration in Italy, although the shift of power from the executive to the judiciary may itself raise concerns, as the example of England seems to prove.