The reasonableness of the punitive response between criminal policies and judicial discretion

Issue 9/2020

Abstract. The far-reaching review of reasonableness carried out by the Italian Constitutional Court over the legislative criminal policies in the last few years seems to give back to the trial judge a greater discretion in determining the an, the quantum and the quomodo of the punishment and, more generally, a greater leeway in finding a balanced punishment, informed to the equity and justice criteria. In the following thoughts, the author tries to highlight this trend taking a cue from the recent ruling of the Italian Constitutional Court (no. 156/2020) regarding the punishment exemption in the case of petty criminal offence.

SUMMARY: 1. The reasonableness as a limit to the “legislative monopoly” in criminal matters. – 2. The “raids” of the Italian Constitutional Court under the aegis of the principle of reasonableness: three scopes of intervention. – 2.1. First scope of intervention: the automatisms affecting the quantum of the penalty. – 2.2. Second scope of intervention: the automatisms affecting the quomodo of the penalty. – 2.3. Third scope of intervention: the automatisms affecting the an of the penalty. The recent ruling no. 156/2020. – 2.3.1. The question of constitutional legitimacy. – 2.3.2. “Reasonableness oblige”. – 3. “Let’s give credit where credit is due”.

To read the judgment discussed, click here.