Punishment or reparation?

Issue 10/2021

Abstract. This contribution is part of the debate on the justification and purpose of punishment, examining the efforts – sometimes contradictory, often partial – that the jurisprudence, in the absence of an adequate regulatory framework, has developed to provide an answer to the demand for justice of the victim of the crime.
The recent reform of the criminal process places among its cornerstones an organic reform of restorative justice, destined to become – in the perspective of the legislature – a fundamental aspect characterizing the new face of the criminal process in Italy, overcoming both the ideology of retribution and the purposes of prevention, general and special.
If it is true that prison continues to represent an indispensable solution in the most serious cases that impose the prevalence of the needs of social defense against offenders whose dangerousness requires to be neutralized, there are now many critical voices with respect to a model of execution centered on the use of traditional prison punishment, while the prospect of a sort of “Copernican revolution” that emphasizes the position of the victim in criminal justice, therefore of restorative justice, which focuses on the relationship between the offender and the victim, is gaining ground: the reparation of the evil inflicted with the crime through an itinerary that, through the inescapable “ritual” of the process, and the activity of mediation, allows a recomposition of the wound represented by the damage – not only material – caused to the victim of the crime.
The restorative justice, in the perspective of the “Cartabia reform” stands – in this perspective – as a complementary model to the sanctioning justice within the criminal justice system, characterizing not only the complex of juvenile justice and the competences of the Justice of the Peace, but also the criminal process, in particular through the institution of the suspension of proceedings with trial of the accused, which provides, among its contents, the mediation between offender and victim.

SUMMARY: 1. Punishment or reparation? – 2. A path fraught with difficulties between regulatory shortcomings and cultural obstacles. – 3. The victim in penal enforcement. – 4. The “restorative shortcut”. – 5. Reparative prescriptions and probation to social service. – 6. Conflict with the aim of re-education: an unfounded fear? – 7. The need for an organic reform of restorative justice. – 8. De jure condendo: the face of restorative justice emerging from the “Cartabia reform”. – 9. In conclusion.

This article was submitted anonymously for evaluation by two expert reviewers, with a positive outcome.

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