In the previous post on the recent developments in the Italian criminal justice system we referred to the mounting criticism towards the penal policies carried out to implement the ECHR's decision in Torreggiani and to reduce the imprisonment rate. These reactions can be understood as a significant turning point in recent Italian history as they signal a radical change in the penal climate. While the underlying reasons for this transformation are debatable and deserve closer attention, two key factors seem to have played a role.

A radical change in the penal climate

On the one hand, as Zelia Gallo recently pointed out, we should probably look at how the recent economic stagnation can account for the growing request for punitiveness, which currently characterises the Italian debate. In Gallo’s view, the ‘politics of austerity’ may have contributed to the weakening of social cohesion, thereby undermining one of the premises of the traditional Italian orthodoxy of ‘penal welfarism’ (see Zelia Gallo, “The penal implications of austerity”, in European Journal of Criminology, to be published).

On the other hand, when looking at the current Italian political framework one could be tempted to underline the role played by the powerful emergence of a new political paradigm based on key issues such as disintermediation and, to a lesser extent, direct democracy. In this context, the growing demand for new law-and-order policies has been channeled through social media fuelling the rise of a new punitive discourse, one that has been endorsed in particular by new ‘anti-establishment’ political leaders.

While some scholars have referred to John Pratt’s concept of ‘penal populism’ to provide a theoretical framework for analyzing such developments, it would seem more accurate – in this case – to refer to ‘populism’ as a broader political category. As John Pratt himself recently observed, the increased inter-connection between socio-economic anger and the rise of new perceived threats to cultural and national identities posed by mass migrations, have caused the populist rhetoric to spill over from the penal sector ‘to pervade the whole social body’ (see John Pratt, Michelle Miao, “Penal Populism: The End of Reason”, The Chinese University of Hong Kong, Faculty of Law, Research Paper, No. 2017–02).

Towards a new penal populism?

In Italy, the rise of this brand new populist discourse has become increasingly dominant in recent years and has grown to influence the criminal justice programmes of many of the parties taking part in the March 2018 general elections (see here). Due to the lack of a clear majority in the wake of the elections, long consultations were carried out among the main parties to form a coalition government. Eventually, the two winning parties – the Five Stars Movement and the League – reached an agreement to form a government based on a common anti-establishment platform (see here). Despite having different views on several key issues, the two anti-establishment parties have a similar agenda with regard to criminal justice. The coalition agreement jointly signed by the two party leaders spells out very clearly the forthcoming majority's views on issues such as sentencing, victim compensation and irregular migration.

The coalition agreement pledges to depart radically from the penal policies of the former centre-left government and openly proposes reforms to ‘undo’ the legislative changes introduced in the post-Torreggiani era. According to the coalition deal, the new government will be committed to ‘put an end to de-criminalization and early release from jail’. Significantly, the section of the agreement devoted to criminal justice is placed under the heading ‘certainty of punishment’ and thus seems a prelude to the adoption of very strict truth-in-sentencing laws.

Further flagship initiatives announced by the two coalition partners include expanding the scope self-defence by removing any proportionality requirement to the defendant's response as well as tightening sanctions for common predatory crimes such theft, robbery and fraud. In an attempt to streamline the criminal proceedings, the deal between the two parties indicates the intention to restrict certain procedural guarantees to prevent defendants from stretching the length of a trial and avoiding a final sentence. Finally, in order to cope with the increase in the prison population that such a punitive agenda is likely to bring, the coalition agreement pledges to build new prisons. This is remarkably at odds with the Council of Europe's soft law which recommends expanding the prison estate only as a measure of last resort.

At the time of writing this blog post there is still uncertainty around the fate of the coalition agreement analysed above, as the President of the Republic has refused to confirm the mandate given to the populists' Prime Minister-designate Giuseppe Conte (see here). There is however little doubt that, if implemented, the announced measures will put the Italian criminal justice system under strain, forcing it to face new allegations of inhuman treatment if sufficient steps are not taken to improve detention conditions.

What is more, the rise of an increasingly aggressive rhetoric advocating the reduction of procedural guarantees to secure a tougher stance on crime raises questions as to whether, in the long run, such policies will secure the overall respect of fundamental rights. While the ‘due process’ safeguards that used to operate as a bulwark against penal excesses are under attack, one can only hope that the proposed policies encounter the resistance of those, including practitioners and civil servants, who remain imbued with the ideas of penal welfarism and are committed to upholding the principle of rehabilitation enshrined in the Italian constitution and protected by the ECHR (see, inter alia, ECtHR, Murray v. The Netherlands, application no. 10511/10).

As the Italian case demonstrates, the academic discussion on the impact of ‘populism’ on criminal justice is far from outdated and is likely to require ever-closer attention in the future.