Abstract
Recent elections in France (2002 and 2007) and Italy (2008) were won on a law and order platform. This article asks why, and compares the strategies used by the new governments to implement their election promises. The goals are the same: to increase security and lower fear of crime levels, but there are noticeable differences in the perception of the underlying causes, such as the role played by illegal immigration. The solutions proposed also vary. France relies on increased police efficiency and more coercive legislation, whereas Italy favours almost exclusively emergency legislation including the deployment of 3500 soldiers. Prevention is not a priority in either country.
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Notes
Ministère de l’intérieur (2002), Aspects de la criminalité et de la délinquance constatées en France en 2001, vol.1, p.17.
Low income housing districts with an above average percentage of unemployed young men, many second or third generation immigrants from North Africa.
The riots started in Clichy-sous-Bois, a working class suburb of Paris, on 27 October 2005 after the death of two teenagers trying to avoid arrest by hiding in a power substation where they were accidentally electrocuted. From there it spread from cité to cité across France.
Sarkozy declared a state of zero tolerance: 2888 rioters were arrested. He was also accused of using inappropriate language, such as calling the rioters “scum” (racaille), without showing concern for the underlying causes of the riot, such as discrimination and lack of opportunity.
The figures are provided by two different polling institutes, the first by Istat, 2004, the second by Acli, 2008.
The number of persons landing on the costs of Italy on overcrowded boats and rafts has increased by 60 per cent during the period August 2007 to August 2008 (from 14,200 to 23,600). In November 2008, the number went up to 27,417. The majority of illegal immigrants, estimated at two-thirds of the total, enter the country legally on a temporary visitor’s visa but overstay the allotted time.
Figures provided by the DAP (Dipartimento Amministrazione Penitenziarai, Prison Service).
Source: Ministry of the Interior, 2008.
The gendarmerie is the military arm of the police. Since the 2002 election, they are no longer under the control of the Ministry of Defence but are now attached to the Ministry of the Interior for their duties inside France.
Mucchielli (2008, p. 4-5) notes that the official police statistics do not include all delinquent acts known to the police but only those that they have transmitted to the office of the public prosecutor, i.e. a considerably lower number, especially if there is pressure from above to produce “good figures”.
Interesting in this context the victimisation study by Nevanen, Didier et al. (2006) that show astonishingly low reporting rates for most property crimes (with the exception of car thefts) but also for acts of aggression in general and especially for sexual and family violence.
Source: Ministère de l’intérieur, Observatoire nationale de la délinquance (OND) et Ministère de la justice (Secrétariat Général, Sous Direction de la Statistique et des Etudes), quoted in Tournier, Arpenter le Champ Pénal 104, Oct. 2008.
Source: Ministère de l’intérieur, quoted in Mucchielli 2008, Table 2.
The polizia penitenziaria is an arm of the police force.
In an interview given to Carlo Mercuri (Il Messaggero, 5 September 2008) the minister speaks of a high approval rate, without giving precise figures. It is certainly true that each time a new security measure is introduced, the rating of the government goes up. It reached the unprecedented high of 62.5 per cent for the Berlusconi government as a whole, and 67 per cent for Prime Minister Berlusconi himself four months after the election (Il Giornale, 10 Sept., 2008).
In 2005, criminal proceedings averaged two years and five months for the first instance, and five years and six months for first and second appeals (Maffei and Merzagora Betsos 2007, 465).
Decreto-legge of 23 May 2008, n. 92 has since been approved by Parliament and converted into law (legge di conversione n. 125) on 24 July 2008.
An exception is made for jobs involving the care of the elderly and the infirm. As an estimated 300,000 Italian families rely on not yet legalized immigrants as live-in care givers for their old, to include this group in the sanction would have led to a breakdown of home care.
They are better known under their previous name of Cpt: Centro di permanenza temporanea.
La Stampa, 17 November 2008.
James Q. Wilson, George L. Kelling (1982), “Broken Windows”, March 1982 edition of The Atlantic Monthly. See also: Kelling and Coles (1996), Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities. The most famous case of the application of this theory was the clean-up operation of New York under mayor Giuliani.
This provision applies only to the region in and around Naples. It might not pass the scrutiny of the Constitutional Court as the law applies only to one province and not to the whole country.
Loi du 18 octobre 2007 créant la fonction de contrôleur général des prisons. The first incumbent of this post is Jean-Marie Delarue, who was appointed on 11 June 2008.
The same law that increases the sanction for organized crime (the so-called Loi Perben 2, March 2004) also contains improved procedural guarantees for the accused.
The age limit may drop by another year if a recent proposal (November 2008) by Justice Minister Dati to lower the age of criminal responsibility from 13 to 12 is accepted.
The majority of young people sentenced to prison (577 in June 2008) still end up in the juvenile sections of adult prisons; in June 2008, only 183 youngsters were sent to the établissements pénitentiaires pour mineurs.
The French Criminal Code distinguished before three types of legal recidivism: 1. General recidivism without a time limit: if a person condemned for a crime or an offence punishable with a prison term of 10 years, commits another crime, independent of the time elapsed between the two infractions, the maximum sentence for the new crime will be increased to life imprisonment if the maximum sentence stipulated by law is 20 to 30 years, or to 30 years, if the maximum sentence is 15 years (Code pénal, art. 132-8).
2. General recidivism with a time limit: the quantum of the prison term or of the fine will be doubled, if after having been condemned for a crime or an offence punishable with a prison term of 10 years, the person commits: within 10 years since the end or the prescription of the previous sentence an other offence punishable with a prison term of 10 years; within 5 years since the end or the prescription of the previous sentence an offence punishable with a prison term inferior to 10 years but above 1 year (Code pénal, art.132-9).
3. Special recidivism, with a time limit: the prison term or the fine will be doubled, if a person condemned for an offence punishable with a prison term of below 10 years commits within 5 years after the end or the prescription of the sentence the same offence or one of a similar kind (Code pénal, art.132-10).
For an overview on sentence reductions see Kensey 2007, p. 72.
Persons who fulfilled the legal criteria of recidivism.
Tournier gives the following figures: For an offence punishable with 10 years or less, the average sentence is 1.6 years, but the minimum sentence for recidivists is 4 years, i.e. 2,5 times more. For an offence punishable with 7 years or less, the average sentence is 1 year, but the minimum sentence for recidivists is 3 years, i.e. 3 times more. For an offence punishable with 5 years or less, the average sentence is 8.5 months, but the minimum sentence for recidivists is 2 years, i.e. 2,8 times more. For an offence punishable with 3 years or less, the average sentence is 5.7 months, but the minimum sentence for recidivists is 1 year, i.e. 2.1 times more (Tournier 2007,40).
Legge n. 251, 5 December 2005.
For first-time recidivists, judges may increase their sentence by one-third (previously one-sixth); if the second conviction is for a similar offence as the first, or if the second offence is committed within five years of the first conviction, the increase is of one-half.
“Law Pertaining to Post-sentence Preventive Detention and Diminished Criminal Responsibility due to Mental Deficiency” (Loi relative à la retention de sûreté et à la déclaration d’irresponsabilité pénale pour cause de trouble mental) of 25 February 2008.
Criminal Court for the most serious crimes composed of three professional judges and 9 jurors (11 jurors in an appeal case).
The Constitutional Court was seized by disagreeing members of both houses (more than sixty in each house) with the following arguments: depriving a person who has already served his sentence of his freedom on the grounds that he is likely to re-offend, infringes the presumption of innocence, the principle of res judicata and the principle non bis in idem. Detaining a person “for an indeterminate term”, which may be extended indefinitely depending on the risk of re-offending presented by the individual involved, is a patently disproportionate measure. Assessing the dangerousness of a person is fraught with too much uncertainty and is too vague a notion to warrant depriving a person of his freedom. Post-sentence preventive detention is an arbitrary detention prohibited by Article 66 of the Constitution and an infringement of the protection of human dignity. Lastly, the members of Parliament contended that applying such a measure to persons convicted of offences committed prior to the promulgation of the statute infringed the principle of non-retroactivity of a harsher criminal statute.
Conseil constitutionnel, Décision n° 2008-562 DC – 21 February 2008.
The law permitting post-sentence detention, even if the possibility thereof is not included in the original sentence, dates from 23. Juli 2004 (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung). In 2006, there were 375 detainees in the whole of Germany, but these statistics do not indicate how many of them fall into the category of post-sentence post trial detention.
This could be because they stand alone and do not have the same support of university research teams or Parliamentary commissions.
Tournier, Arpenter le Champ Pénal, N° 107, 27 Oct. 2008.
Part of the increase goes on account of pardoned inmates returning to prison, 7,594 as of 1 January 2008 (Source: DAP, Prison Service). The figures may have gone up by now, but returning pardoned inmates still only explain about one third of this sudden jump in numbers. The remaining two-thirds are accounted by longer sentences imposed on recidivists and other offenders causing social alarm, a greater reluctance of judges to grant alternative measures to imprisonment, and a sharp increase of foreign inmates held in pre-trial detention. 37.4 per cent of the total inmate population are foreigners (1.8.08), but the percentage of foreigners in some remand and short term prisons (casa circondariale) can be very high, especially in the North of Italy. The record is held by the casa circondariale of Padova where 80 percent of the inmates were non-Italian in October 2008.
Bader and Shea 2007, p. 9.
Ibid., 2006, p. 45; 2007, p. 28.
Statistics provided by Boscoletti N., President of the Cooperativa Sociale “Giotto” (www.ilsussidiario.net, p.2) 727 jobs are provided for inmates allowed to work outside during the day, and 700 inside prison (278 in Lombardy, 170 in the Veneto, 44 in Piedmont, 28 in Lazio, 38 in Calabria, 35 in Toscana, 15 in Emilia Romagna and a handful in the other regions).
Ibid., p. 2.
The Italian system of early release does not correspond precisely to the French one. The most common form is semi-libertà: inmates go out to work or study but return to prison at night and on week-ends. They can also be bound over to the social service, a form of probation (affidamento in prova ai servizi sociali) or given house arrest.
This figure does not include day passes, as they don’t qualify as a form of early release.
Tournier P.V., de Crouy-Chanel M., 2008.
Prison staff is composed in both Italy and France of 82 per cent officers and 18 per cent of administrators and others.
Though the percentages are identical, the numbers are quite different. France employs 27,562 persons in its prisons, of which 22,390 are prison officers. Italy employs 47,988 persons of which 39,175 are officers. Source: Council of Europe (2007) SPACE 1. Despite the relatively large number of non-custodial posts in Italy, the shortage of educators and social workers remains high: 715 educators instead of the 1,376 that were promised, and 1,154 social workers instead of 1,630. In addition, the hours of psychologists have been cut by 25-30 per cent. Source: OOSS (Prison Officers’ Union), 13 Nov. 2008.
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Shea, E. Elections and the Fear of Crime: the Case of France and Italy. Eur J Crim Policy Res 15, 83–102 (2009). https://doi.org/10.1007/s10610-008-9091-6
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DOI: https://doi.org/10.1007/s10610-008-9091-6