Recidivism: renewed reflections on its raison d’être within the system

Issue 1/2022

Abstract. This paper is part of the long-standing debate concerning the justification of recidivism in the Italian criminal system and focuses on the – necessarily only partial – efforts that jurisprudence, due to the absence of a legal discipline actually inspired by the principles of the Italian penal system, progressively has made to save the raison d’être of such an institution within that framework.
Considering the latest reform on the matter, that is the ex Cirielli Law of 2005 – inspired more by the need to gather consent from public opinion rather than by the intent to concretely stem the phenomenon of relapse into the crime – once again the current penal system seems to have regressed to an irrationally afflictive discipline towards the “repeat offenders” and, therefore, it seems to be markedly at odds with the principles of offensiveness, reasonableness, proportionality and tendential re-education to which the Italian criminal legislator should instead aim at, by expressed constitutional prescription.
This reflection, which constitutes the essential nucleus of the paper, is explicitly confirmed in the numerous declarations of constitutional illegitimacy which, starting with the 2005 reform, have affected the Italian regulatory regime to which the current figure of recidivism is subjected, and therefore it requires questioning the actual need for such an institution to exist in the system.
In fact, if it is true that even the personological elements of the offender may be suitable for characterizing the crime committed in terms of greater or lesser value, it is equally true that, as a result of the ex Cirielli Law, the previous definitive judgments against the offender are now potentially able to determine excessively severe penalties and methods of execution, which in no way reflect the principles of fairness and proportionality that should instead always mark the relationship between the penalty and the crime committed.
Hence the fundamental question regarding the future configuration of the Italian criminal system: to be or not to be of the legal institution of recidivism? 

This article was submitted for evaluation by two experts, with a positive outcome.

SUMMARY: 1. Historical evolution of the discipline of recidivism. – 2. The socio-political reasons underlying the Ex Cirielli Law. – 3. Critical aspects of the current discipline of recidivism. – 4. Recidivism: doubts about the compulsory or optional nature of the institution. – 4.1. The rulings of the Italian Constitutional Court regarding art. 99 paragraph 4 of the Criminal Code. – 4.2. The ruling of the Italian Constitutional Court regarding art. 99 paragraph 5 of the Criminal Code. – 5. The tension underlying the current wording of art. 69 paragraph 4 of the Criminal Code. – 5.1. The objective attenuating circumstances in the judicial balance. – 5.2. The reward attenuating circumstances in the judicial balance. – 5.3 The subjective attenuating circumstances in the judicial balance. – 6. Concluding reflections on the raison d’être of the institution of recidivism within the Italian law system.

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