ABSTRACT

This presentation describes the legal and scientific bases on which, according to Italian law, the concept of the "social hazard" represented by a criminal

is described (Art. 203 of the Italian Penal Code: a dangerous person is one who, whether healthy or not, has committed one or more crimes and is likely

to commit others). This unpublished study concerns 400 case-reports covering a five-year period (2009-2014), from members of the Court of Venice, the

largest Court of Surveillance for social hazard in northern Italy.

INTRODUCTION

What does "socially dangerous" mean in Italy? Art. 203 of the Italian Penal Code first names the institution responsible for inspecting aspects of social

hazard and then provides a brief definition: a person is deemed to be socially dangerous when, even though he or she* has not been accused or cannot

be punished, has already committed crimes and is expected to commit others, foreseen by Italian law as criminal acts. This involves a judge's prognos-

tic opinion as to the probability of further penal acts by the accused.

The original concept of social hazard was introduced in the Italian Penal Code in 1930, thanks to the theoretical work of Cesare Lombroso, of the Posi-

tive School, who interpreted crime as a natural phenomenon deriving from various criminological factors, including the influence of the environment on

the criminal. In other words, the Positive School focused on the problem of the hazard represented by the accused and, for the first time, attempted to

supply prognostic judgments on the likelihood that the person in question would commit further crimes. In this criminological and legal framework, our

samples concerning socially dangerous persons were evaluated at the Court of Surveillance of Venice.

(*) In this text, for purposes of English style and also because the great majority of criminals described here are male, the third person singular pronoun

he is used.

MATERIALS

We analyse here some "samples", orders made in 2009 – 2012 – 2013 – 2014 regarding requests to grant measures alternative to imprisonment, i.e.,

temporary referral to the social services in particular cases for house arrest or part-time detention (“semilibertà”).

METHODS

In the Italian Court of Surveillance, the judge is the person who acts for convicted persons after the final sentence and decides on requests for punish-

ments alternative to imprisonment, such as house arrest, early release, or provisional custody to the social services.

Criminologically speaking, what are the reference parameters in Italy which enable the judge to assess a socially dangerous person? The items listed

below are also used in the criminological field.

Art. 133 of the Italian Penal Code expresses the following items:

(1) The reasons for deliquency and the type of crime; any penal or judicial precedents and the general conduct and life of the accused before the pre-

sent crime, conduct at the time of and after that crime, and the individual, family and social living conditions of the accused;

(2) For the Italian Supreme Court, social hazard may be desumed from simple evidence, if it has been ascertained, from which the likelihood that the

subject will commit future crimes may be formulated. This evidence includes subjects who, already condemned for serious crimes, habitually frequent

persons who are members of a criminal association of mafia type;

(3) Any state of drug addiction is assessed: in order to define a prognosis of social hazard, the nature and seriousness of the criminal facts are im-

portant, so that the judge is not obliged to consider only medical and/or psychiatric emergencies, but may also attribute importance to any element be-

lieved to be useful for purposes of ascertainment;

(4) The judge may consider the penal precedents of the accused, as indicating continuous anti-social conduct over time. In order to ascertain the sub-

ject's current level of social hazard, at the time when personal measures must be applied, the judge must consider not only the gravity of the criminal

act, but also later facts, such as the behavior of the accused during imprisonment.

In addition, in Italy, the following parameters cited in the Penal Code are taken into account:

- habitual criminality (Art. 103): understood as the tendency or attitude of the accused to crime or the frequency of committing crimes;

- professionality (Art. 105): understood as a particular form of habit, in which the accused lives on criminal acts, considered as a means of financial

support;

- tendency to delinquency (Art. 108): this type of danger is the most difficult to ascertain, in that it anticipates that the subject has voluntarily commit-

ted a crime against the life or personal safety, while presenting a particular predisposition towards crime:

- operators in the field of law in Italy, such as forensic doctors, psychologists and psychiatrists working together with prosecutors, judges and law-

yers, have found that the following symptoms, inserted in the judgments of the Supreme Penal Court, define a delinquent as a social hazard:

A) the subject may be an emotionally ordinary delinquent who turns to crime easily; alternatively, he may be encouraged by good prospects or by an en-

vironment, which he cannot avoid, in which criminal acts are encouraged. Such a subject may be calculating or impulsive (i.e., he may overcome social

inhibitions due to incapacity to resist internal impulses or external stimuli), who has committed crimes of the same type or for similar reasons;

B) static factors, which exclusively concern the past and which cannot be changed, when evaluating the likelihood of renewed criminal activity (age,

gender, race, civil status, schooling, work, family, criminal, medical and judicial history, etc.) and dynamic factors (personality, motivation, social support,

psychopathological or drug addiction problems, etc.) which reflect those circumstances, current behavior and real perceived needs, which treatment

may modify in a non-crime-inducing sense;

C) previous criminal record and behavior during imprisonment;

D) definite possibility of social rehabilitation, the existence of family support or social services, and past and present medico-psychiatric state;

E) indications, composed of objective, ascertained facts, from which future crimes may be conjectured (keeping company with known criminals, lack of

permanent work, penal record).

There are essentially three methods of criminal prognosis, which may be added to the above:

- Clinical history, based on previous history, clinical interviews and psychological, social psychopathological, psychodiagnostic and neurobiological

tests of the subject, particularly as regards his present mental state and any changes taking place after the crime, modes of behavior, response and atti-

tude, especially with respect to intrapsychic conflicts with the external world, and including factors (static, dynamic, biological, psychiatric, etc.) which are

typical of anti-social behavior;

- Statistic method: monitoring of the characteristics of single delinquent groups. Subjects are assessed with scores reported in the specialized literature

(and sometimes carried out during interviews with the subject), regarding factors correlated with the likelihood of criminal acts;

- Intuitive method: this is not a scientific method, being based on ordinary thinking and on the judge's professional and personal experience (the only

immediately accessible method).

CRIMINAL SUBJECTS

Let us now examine some parameters which describe how criminals are classified:

1) Penal ability: the normal ability of a person who occasionally behaves in a criminal fashion, violating penal laws applicable in the state in which the

act is committed. This is the American malum prohibitum, understood as part of a criminal breach of standardized laws relating to common law applied

to criminal laws in the USA, " ...whereas a malum prohibitum offense is wrong only because a statute makes it so”, State v. Horton, 139 N.C. 588, 51

S.E. 945, 946 (1905);

2) Criminal ability: an index of the sole responsibility of an individual criminal (deviant criminal), on the basis of which the penalty appropriate for the

crime committed is applied;

3) Ability to commit a crime: this refers to an individual's special disposition or inclination to commit acts, in stark contrast to existing criminal laws (in

Italy, this is equivalent to Art. 133, in order to evaluate the illegality of the act). In the US, this malum prohibitum parameter is comparable to the Latin

phrase, meaning wrong-doing or evil in itself. It refers to conduct assessed as inherently wrong by nature, independent of regulations governing con-

duct);

4) Character of the offender: the court infers a person's "capacity to commit a crime". Several factors affect an individual's criminogenesis, including

the environment and, by extension, the criminal's social context and family. The court considers these factors as prognostic criteria ex ante to the of-

fence, in order to prognose the future of the criminal.

5) Relapse: a personal condition of relapse (Art. 99) by a subject who has been convicted of a crime with intent and who commits another crime of the

same or different nature (Art. 101).

RESULTS

This analysis examines prison inmates' petitions for measures alternative to imprisonment (house arrest, assignment to the social services, or part-time

detention) made to the Court of Surveillance of Venice in the years 2009, 2012, 2013 and 2014. The analysis includes information on nationality

(Italians, non-Italians), gender, age, type of crime, and type of petition to the Court and its outcome (acceptance or rejection).

Results show that, while in 2009 about 65% of prisoners making such petitions were Italian nationals, in the other years the ratio was about 50:50. The

great majority were men, and the reasons for their imprisonment were mainly crimes against property (robbery with violence, theft, drug trafficking, re-

ceiving of stolen goods, bankruptcy). The number of crimes against the person fell during the period covered by this analysis.

In 2009, almost equal results as regards both acceptance and rejection of petitions were found, but this situation changed in the later years. Of petitions

for house arrest in 2012, 86% were accepted and 14% rejected. In 2013, the result was almost equal: 45% accepted and 55% rejected. There was a

substantial change in 2014: 49% were accepted and 24% rejected. In this case, the higher percentage was due to the fact that prisoners had made all

three requests (house arrest, assignment to the social services, or part-time detention) within the same petition.

In 2012, there were no assignments to the social services. The figures for 2013 were 45% acceptance and 55% rejection, and those for 2014 24% ac-

ceptance and 59% rejection.

There were no petitions for part-time detention in 2012, in 2013 9% of rejections, and 21% of rejections in 2014.

One point stands out for 2014, when the Court of Surveillance revoked already assigned alternatives to imprisonment. Fifty-seven percent of non-Italian

and 43% of Italian prisoners were affected by this measure. The crimes committed by these subjects before being granted alternative measures were

crimes against property (mainly drug trafficking). Of the revocations, 71% concerned house arrest and 29% assignment to the social services. In both

cases, revocations were due to violation of the judge's prescriptions.

As regards the concept of "social hazard", it was noted that the prisoners in question did not show any signs of complete or even adequate critical think-

ing about the crimes they had committed, nor about their previous life-style. A lack of critical reflection and of any real will to change were observed in

many cases. In others, the judge defined the propensity to crime as dictated by conditions of personal and social difficulties. In particular, some prison-

ers with psychological, social and relational problems had violent, aggressive personalities. Others showed psychological pathologies or personality dis-

orders. Some cases of drug addiction were also found, and therapy programs were started for them. The social hazard of these subjects was revealed

by their behavior in prison, which was constantly irregular, with poor participation in educational and other activities.

DISCUSSION

The findings of the Court of Venice must be correlated with results from neurological research within the juridical field, e.g., the occurrence of polymor-

phisms such as the enzyme monoamine-oxidase MAO (MOA-L allele) on chromosome X and catechol-O-methyltransferase (COMT), which regulate the

working of neurotransmitters such as serotonin in the former case and dopamine in the latter (Nutt et al., 2007). Monoamines (including serotonin and

dopamine) are widespread in the central nervous system, and affect several functions including attention and mood, anxiety and irritability (van Hock,

Morgan, Schutter, 2010).

Neurosciences become even more essential whenever a judge must evaluate analysis of the mental state and behavioral expressions of accused per-

sons, since the state of biological neurotransmitters is of great importance. It should also be noted that, although cognitive psychology examines the

ways in which the mind processes information reaching it through the sense organs, cognitive neurosciences (a combination of the above disciplines)

can exploit CT and PET technologies to observe brain morphology and the mental areas which are activated as a result of external stimuli, revealing

correlations between psychopathological symptoms and alterations in brain activity. As well as MAOA and MAOA-L, three parameters must also be tak-

en into account: the biology of the brain (dominated by the genetic factor), the subject's personality (based on psychological and psychiatric study of

mental state), and the environment in which the subject lives. Clearly, in the light of such studies, biological examination of the brain inevitably leads to

the perspective of human evolution, giving valuable information not only on the alleles involved, but also on the true personality of human beings. These

studies prove that the biological history of the human race is far more complex than appears at first sight, being linked to other parameters - not only

criminological, as noted above, but also to genetic mutations and migrations, genetic drift (variations in the frequency of genes among populations over

time) and natural selection (LUSA-PASCASI, 2012). Migration may therefore give rise to new alleles under the influence of genetic mutation, on which

natural selection may act, enhancing favorable characteristics. In other words, if the "gene of violence" exists, it may not necessarily be unfavorable (on

the contrary, it may even turn out to be essential for survival).

CONCLUSIONS

Many questions arose from this statistical study carried out at the Court of Surveillance of Venice. First, those imprisoned in the Veneto Region were

mostly convicted for crimes against property with respect to crimes against the person. Or rather, in view of the types of crime and of convictions in the

whole period considered, until the mid-2000s in Italy most crimes committed were against property.

The situation regarding crimes against the person remains open. At the present time, are there prisoners convicted of crimes against the person who

cannot legitimately request alternative measures to prison? Or do the penalties applied for crimes against the person not reach the threshold for impri-

sonment? Or, again, is the Italian judicial system simply too slow, so that these crimes remain unpunished when the prescription for them expires?

As regards crimes against property, after assessment of the social hazard represented by those who request measures alternative to prison, do those

measures achieve the aim of rehabilitation which is appropriate to the punishment? If we look at the results for 2014, the answer to this question is: No.

The prisoners who had benefited by alternative measures return to prison, due to violation of the judge's prescriptions. This means that they did not un-

derstand either the gravity of the crimes for which they were convicted, nor did they realize the seriousness of their behavior during house arrest or assi-

gnment to the social services. As regards nationality, the majority were non-Italians.

To conclude this analysis, there are two crucial aspects on which criminological and juridical research should focus when attempting to assess social

hazard. The first regards case-histories described according to results from this statistical study. The second must consider the theoretical parameters

identified in the Discussion (see above) and which focus on the theoretical anthropic and chronological model of evolutionary criminogenesis: this is be-

cause its effects reverberate on human behavior and on the genetic details which, as we have shown, underlies many criminal acts. Within this perspec-

tive, assessments carried out in prison by specialized personnel, mainly doctors, must be more accurate (more time is needed; greater frequency of

contacts, i.e., several interviews with the prisoner, etc.).

From the above, clearly, new professional figures must be placed within prisons, people who are better able to enter into meaningful discourse with pri-

soners according to their nationality, thus allowing better understanding of the type of crime committed and its gravity. These figures could be cultural

mediators, flanking the teams of psychologists and social operators already at work in prisons, to assess those inmates who wish to request a form of

detention alternative to prison.

Synergic action by such figures might be very useful to magistrates when deciding on the probable presence, permanent state or absence of the social

hazard represented by a given prisoner, and better prognosis of the possibility of continuing delinquency once out of prison.

A study of more than 400 cases reported between 2009 and 2014, by the Court of Surveillance of Venice, for judicial examination and evaluation of the social hazard presented by convicted criminals

Vincenzo Lusa JD, Pontificia Università “San Bonaventura”, Rome, Italy; Patrizia Trapella JD, Luca Massaro JD, Sara Raponi JD