Although embedded in different cultural and legal traditions, the two countries examined show comparable traits. In this article we have tried to suggest ways in which alternatives could genuinely boost a decarceration process. We have also hinted at the punitive cultures which, in England and Italy, hamper the development of alternatives and make them coherent with the conservation rather than the demise of prison.
It is interesting to note that, in both countries, a critique can be levelled at the excessive polarisation of administrative power in granting alternatives or denying them. Prison administrators are entrusted with authority which should be the property of the courts. We pinpointed the prerogative to lengthen prison sentences by means of imposing disciplinary punishments in England, and by means of rejecting prisoners' bids for alternative punishments in Italy. We argue that this shift of power which occurred in Italy, from the judiciary to the executive, seems to characterise many contemporary Western democracies. An interesting exeption to this is the experience of England, where almost the opposite is in operation, judges seem to exercise superior control over executive power.
A fundamental difference between the two countries emerged in the respective judicial philosophies. Codified Law in Italy and the Common Law in Britain influence the way in which reformers can argue the case for decarceration and alternatives. While in the English Criminal Justice Act 1991 the concept of punishment is of paramount importance, in the Italian constitution the very notion of punishment is nowhere to be found, and is anathema among most jurists. A written constitution offers some space for reformers to take issue with those aspects of the legislation which fall short of constitutional principles. Among these is that rehabilitation is the only legally accepted function justifying the very existence of the prison system. One particular aspect of this philosophy is the rejection of short sentences, which are deemed to hinder rehabilitation and entice criminal careers. When, as is often the case, prison practices betray this and other principles, scope for criticism and reform present themselves.
An interesting comparative element is to be found in the differing appreciation of the concept of «discretion» as understood and practised in the two countries examined. In Italy, when the word discretion is used in the context of the judiciary or the prison system, its very semantic content confines closely with that of arbitrariness. Here, a precise distinction of roles, a mandatory set of penalties, and a series of written individual guarantees, do not allow for subjective interpretation or discretionary decision making. A subtle, well founded, suspicion informs the relationships between citizens and the authorities in Italy, where rights and prerogatives are thoroughly defined. Conversely, discretion in Britain does not necessarily imply negative connotations. Here, it encapsulates a distinctive relationship between citizens and authority which could be defined as paternalistic. Hay (1977) traced this paternalistic origin of the British judiciary back to the 18th century, when «assaults on the structure of authority determined the English ruling class to repel any attacks on the mistery and majesty of the law» (Hay, 1977: 59). Hence the unique and to most Europeans scandalous, way in which magistrates and judges are recruited in England (though recently the first possibility of introducing some changes to the system have been voiced, see Runciman, 1993). Garland (1985) locates paternalism within a number of related institutions and agencies, which are at the same time normalising, corrective and segregative. He argues that the development of the welfare state buried the remaining criteria of guilt, responsibility, legal evidence and proportionate punishment. Guilt is no longer the founding principle of legal intervention. «Besides guilt, intervention can now be premised upon a «condition», a «character» or a «mode of life», which indicates a failure to meet one's social obligations or else an inability to do so» (Garland, 1985: 235) Although in the English context there has been a critical view about discretion as being inimical to consistent sentencing, we believe that discretion, on the other hand, may offer space for innovation, and may be synonymous with flexibility. In this sense, reformists in England may pursue their case by orienting discretion towards the development of alternatives to custody. The two contexts, in sum, seem to offer symmetrical space and arguments for real reform and decarceration.