1.
The Forum addressed in an open Assembly the issue of the offender who has committed a crime in conditions of mental suffering. Age-old problems, at the theoretical level of normative models and practices, surround the treatment of the mentally ill offender. The Assembly’s discussion was based on two proposals. One is the one coined more than a decade ago by a group of intellectuals and operators, now advocated by Franco Corleone and Pietro Pellegrini as well as endorsed by the Society of Reason. It aims to repeal the barrier of non-imputability. These reform ideas have been condensed into a bill signed, among others, by the deputy Riccardo Magi and are in continuity with a long history which has seen the involvement of movements for the humanization of sentences in our country, quite a few scholars of criminal law and procedure, in constant alliance with the actors of change in mental health. From an ideological – one would say philosophical – point of view, the prospect is to equalize the condition of the mentally ill person who commits crimes to that of any individual who commits a crime. Essentially, in any case, anyone who commits a crime should still be held accountable in terms of criminal liability. The mental disorder is never the actual and only cause of the crime committed, much less precludes the offender from understanding the consequences of the illicit act. The aim is to affirm the idea of a right to criminal execution on equal terms. This implies that insanity does not determine confinement in a special circuit: that of security measures. Over the course of republican history, it has produced unsuccessful results in terms of rehabilitation and, with some exceptions, has not ensured dignified living conditions for those imprisoned in judicial psychiatric hospitals and in care and custody homes.
During the debate held within the Forum Assembly, it was confirmed, however, that this reform perspective presents a systemic effect that is difficult to govern. In fact, accepting the idea that the category of the non-attributable mentally ill person will disappear implies then outlining a specific solution when carrying out the sentence. There is no need to recall Basaglia’s teaching according to which curing in captivity is in any case impossible as well as useless.
It is no coincidence that the Constitutional Court itself with sentence no. 99 of 2019 opened up the possibility of accessing home detention due to the condition of mental, as well as physical, suffering affecting the person serving the prison sentence. A step forward in legal civilization. In general, the hypothetical abolition of non-imputability re-proposes the need for a targeted treatment that is effectively therapeutic and rehabilitative. Therefore, if a reform were to be approved according to which everyone is always and in any case attributable for the crime committed (abolition of the so-called double track, attributables not attributable) the issue of guaranteeing an adequate response to the people who have committed a crime and their mental health needs. In this scenario, to rely on an unfortunate nomenclature, the crazy criminals would be added to the crazy criminals. The true fulcrum of the relationship between mental health and criminal execution always returns to reverberate on the structures that report to the mental health departments in the area.
2.
In this regard, during the debate in the Forum assembly, a second hypothesis of regulatory reform was exposed, apparently with homogeneous features compared to the first and also abolitionist of the concept of non-imputability. According to the plan of the psychiatrist Giancarlo Castagnoli and other colleagues gathered under the coordination of the Tuscan psychiatrists, starting from the abrogation of the articles. 88 and 89 of the penal code (which provide for non-imputability and partial mental defect), we would like to reconsider mental disorder as a possible mitigating circumstance or modulation of the sentence. According to the proponents, following the proposed reform in the field of territorial services, an area of treatment of judicial detention measures would be created. These detention measures would be implemented in prison – hypothetically relaunching the therapeutic function within it – and in the REMS. Pending the adoption of this proposal, their supporters hope for a series of temporary solutions, among which it is worth mentioning the presence of law enforcement in hospital facilities and the establishment of para-intensive areas in emergency room services for patients in psychomotor agitation. The main aim of this hypothesis would be to redefine the node between mental health services and collective security, avoiding, in their view, the devolution of custodial functions to local services.
The proposal, however, outlines a type of mentally ill offender, to whom very special institutions would be dedicated: in fact, one imagines the institution of “custodial and non-custodial REMS” precisely and only for this type of user, as well as the hypothesis of specific health budgets for “judicial psychiatric patients” is proposed.
3.
As a result of the debate carried out, the Forum confirms the historical position that has characterized its position on the treatment of the person who has committed a crime in conditions of mental illness. Sharing the general perspective of repealing the articles. 88 and 89 of the penal code, effective solutions, under current legislation, are to be found in the virtuous practices developed following ln 81 of 2014. Therefore:
the use of the detention security measure in the REMS for the not attributable must constitute a short-term and in any case exceptional treatment solution; to allow the solution to be found in the non-custodial security measure for the majority of cases, maximum integration is needed between the judging and prosecuting judiciary and the mental health services; it remains crucial to ensure therapeutic continuity and preserve care in the territory to which the person belongs, so as not to sever the social and environmental ties of reference; it appears fundamental, in this logic, to focus on individual therapeutic projects capable of ensuring a long-term perspective in rehabilitation and resocialization treatments.
It is no coincidence that both the Constitutional Court, in a recent ruling which rejected the criticism of unconstitutionality of law 81 of 2014, and the Superior Council of the Judiciary, in 2018, with two resolutions, urge full collaboration between health care services mental and the judiciary, being able to count on the External Criminal Enforcement Offices (UEPE). These must definitely be strengthened in resources and capacity for action.
Finally, from a cultural point of view, the ideal completion of the great psychiatric reform implemented with the law. 13 May 1978, n. 180 (Basaglia law), consists in the abolition of the ambiguous concept of “social danger”. This last line of reform would be the one capable of guaranteeing the breaking of the knot that still links the mission of mental health services to undue and improper tasks of protecting public order.
After all, Franco Rotelli was already among the founders of the Forum, in a short speech, On the double track “the train goes backwards”, at the IX national conference (2021) of the Italian Association of Professors of Criminal Law, he stated:
“…During treatment, be recognized, if necessary, as people suffering from a serious state of mental illness and therefore treated as such and as such placed in alternative paths to detention, in treatment paths, in support with treatment programs and rehabilitation programs designed on the particular history of that person. Those paths that psychiatric reports should indicate. No longer having to indicate psychiatric reports as answers to questions that the psychiatrist is unable to answer. That is, if the person is or was dangerous, if the person is or was incompetent. These are questions without scientifically based answers.”
Mental Health Forum, February 2024